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The nature of precedent

Judicial precedent refers to the source of law where past decisions of the judges create law for future judges to follow. This source of law is also known as case-law. It is a major source of law, both historically and today.

The idea of binding judicialprecedent is a special feature of common law jurisdictions, that is to say, systems of law based on that of England. Binding precedent is a precedent from an earlier case which must be followed even if the judge in the later case does not agree with the legal principle. A binding precedent is only created when the facts of the second case are sufficiently similar to the original case and the decision was made by a court which is senior to (or in some cases the same level as) the court hearing the later case.

The English system of precedent is based in the Latin maxim stare decisis et non quieta movere (usually shortened to stare decisis) which loosely translated means: ‘stand by what has been decided and do not unsettle the established’. This supports the idea of fairness and provides certainty in the law.

Whether a courtis bound tofollow a previous decision depends to a very large extent on which court gave the previous decision. Generally, if the decision was of a superior court then the lower court must follow it, but a superior court is not bound by the previous decisions of an inferior one. The following table outlines the main rules:

*Decisions of the House of Lords bind all other courts for the future, and until 1966 were even binding on the House of Lords itself in subsequent cases. In that year, however, the Lord Chancellor issued a statement on behalf of the House that it would no longer regard itself as rigidly bound if this would cause injustice by reason of changing social circumstances.

* The Court of Appealis bound by previous decisions of the Lords and, in most circumstances, by its own previous decisions. Its decisions are binding on all lower courts but not upon the House of Lords.

* A High Court judge isbound by decisions of the House of Lords and the Court of Appeal but not by other High Court decisions.

* A County Court judge is bound by decisions of all higher courts. The decisions of the County Courts themselves are not binding in any future case, and they are not normally reported at all.

This does not mean that decisions of lower courts will be disregarded by higher courts. These decisions may not be binding precedents, but they will have persuasive value. The judge may consider it and decide that it is a correct principle so he is persuaded that he should follow it. Persuasive precedents are recognized by people as the law, and acted upon accordingly.

Since 1973 the highest court affecting English legal system is the European Court of Justice. For points of European law, a decision made by this court is binding on all other courts in England and Wales. However, there are still laws which are unaffected by European Union law and for these the House of Lords is the Supreme court.



When seen in operation, the doctrine of precedent works in quite a complex manner. When he gives his decision in a case the judge does, in effect, three things.

1. He gives his actual decision between the parties: ‘I find for the claimant’, or ‘the appeal must fail'. This is obviously the part which is of most interest to the parties themselves.

2. He will also give his reasons for reaching that decision: what facts he regards as ‘material', the legal principles which he is applying to those facts and why. This is called the ratio decidendi (the reasoning vital to the decision), and it is this part of the judgment which may bind future courts.

3. He may also, at the same time, discuss the law relating to this type of case generally, or perhaps discuss one or the hypothetical situations. These will be obiter dicta (other comments) and while they may have persuasive force in future cases, they are not binding.

Having become a precedent, a decision need not continue to be one indefinitely. It can cease to be binding in various ways. A decision can be reversed. This is where a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case. For example, the Court of Appeal may disagree with the legal ruling of the High Court and come to a different view of the law; in this situation they reverse the decision made by the High Court. Where similar facts come before the courts in a later case, then a higher court can overrule the previous decision of a lower one. This is where a court in a later case states that the legal rule decided in an earlier case is wrong. Overruling may occur when a higher court overrules a decision made in an earlier case by a lower court, for example, the House of Lords overruling a decisionof the Court of Appeal. It can also occur where the European Court of Justice overrules a past decision it has made; or when the House of Lords uses its power under the Practice Statement to overrulea past decision of its own. Finally, a previous decision can often be distinguishedwhere the material facts of the earlier case differ from the present ones. There will always be some difference between the facts of two separate cases and if the later judge feels that the difference is sufficient to justify a different decision, he will distinguish the earlier case. In this way even a lower court can avoid holding itself bound by a previous higher decision.


Date: 2016-01-14; view: 1003


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