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Judicial Precedents

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Judicial Precedents

Describe judicial precedents. Discuss the different ways case laws can
be superseded and quote some examples.

Answer for question 2

Judicial precedent can only operate effectively if the precise legal
reasons for
the past decision are known. The reasons for the decisions are known
as ratio
decidendi ‘reasons for deciding’, and it is this part of the judgment
that is
binding. Everything else said by the judge is obiter dicta, ‘by the
way’ which
can be persuasive but are not binding.

Judicial precedents elaborate principle of the Common law system.
Previous
judges made their decisions based on all proved facts provided by
solicitors of
both the defendant and the plaintiff, as well as the principle of
pre-existing
laws.

A judge may take the former decision as reference to assist
him to make the present decision. He may also decide the present case
in the same
way as the previous case unless he can give good reason for not doing
so. In addition,
the judge in the instant case may decide it in the same way as that in
the previous case,
even if he can give good reason for not follow this decision. In the
last situation, the
precedent is said to have binding effect. In other situation, the
precedent has some
degree of persuasive effect. Under the system of judicial precedent,
courts are bound
by the decisions of other courts which are superior to them. For
example, the High
Court is bound by a previous decision of the Court of Appeal and the
Court of Final
Appeal.

judicial precedents can be classified into
binding precedents and persuasive precedents. Judge must follow the
decision of
previous case if the precedent is binding and need not to follow if
the precedent is
persuasive. Binding precedent is made by a higher court and lower
court must follow
the decision. On the other hand, a higher court may not follow the
decision of a
previous case as it is persuasive.

Ratio decidendi is the reason for deciding. This judgment base on the
system of
precedent. It has binding effect to the lower courts.

An obiter dictum is the thing said by the way in the judgment. It is
the statement said
by the judge other than ratio decidendi in the judgment. It has no
binding effect but
persuasive effect.

Difference between ratio decidendi and obiter dictum

Ratio decidendi

Obiter dictum

Reasons for the decision of the case

Opinion of the judge

Has binding effect

Has persuasive effect

Relatively more important

Less important

How do judges make law by using doctrine of binding precedents?

Under the doctrine of binding precedents, judges ‘expound not expand’
the law
(Fender v St John Mildmay, 1937, per Lond Thankerton). They are
reluctant to act as
law makers. Nevertheless it is possible for judges to make law. For
example, by
distinguishing a case a judge will create a new precedent and thus
create new law.
Distinguishing occurs when cases which are similar and are
distinguished on their
facts. It is why case law remains flexible and adaptable. A judge may
choose to regard
as material a fact which is not common to the precedent case and the
case being
decided. On these grounds the judge can avoid having to following the
precedent case.
For example, in Bridges v Hankesworth (1851) a customer who found
money on the
floor of a shop was held to be entitled to keep the money. In South
Staffordshire Water
Co. v Sharman (1896), in which workmen found gold rings in the mud of
a pool
owned by the plaintiffs, Bridges was distinguished in that in Bridges
the money was
found in a place to which the public had access whereas in South
Staffs the pool was
not public. The owner of the pool was entitled to the rings. Thus by
distinguishing the
precedent case, the court in South Staffs created new law.

ways

A court of competent jurisdiction may overrule previous precedents.
Within the
hierarchy of the courts, a court of competent jurisdiction may declare
that the
decision in a previous case is no longer good. For example, because a
previous court did not correctly interpret the law or because the
later court
considers that the rule of law contained in the previous ratio is no
longer
supportable or desirable.
Overruling

If a previous court misinterpreted the law, the defendant can appeal
to the higher court.
A court of competent jurisdiction will reconsider the ratio decidendi
of the
judgment.If the previous statement is not suitable, the case will be
overruled. Only
courts of the same level of the previous or higher can overrule the
judgment.

1

3. Function of Judicial Precedent

Today we use common law to describe judge-made law handed down through
cases i.e. law which does not have an Act of Parliament as its source
– murder
is an example, although most criminal law is now in statute form. On
the civil
side tort is almost entirely based on case law and precedent so is a
useful
source of examples.

A court of competent jurisdiction may overrule previous precedents.
Within the
hierarchy of the courts, a court of competent jurisdiction may declare
that the
decision in a previous case is no longer good. For example, because a
previous court did not correctly interpret the law or because the
later court
considers that the rule of law contained in the previous ratio is no
longer
supportable or desirable.

Judicial precedent may be reversing. On appeal, ratio overturns
decision of
court below that hearing the appeal. The appeal court will then
substitute its
own decision.

Factors affecting the power of persuasive precedent


The rank of the court in the hierarchy
The higher position of the court, the decision of the court will be
more persuasive. It
is because the court has a higher prestige.

The prestige of the judge
If the judge is very famous, his judgment becomes more persuasive
because he has
more experience and higher prestige.

Location of the precedent
Different countries may have different custom even they use common law
system.
The persuasive power of the precedent depends on the custom of the
country.

Date of the cases
The older cases are, the lower the degree of persuasion will be due to
the change of
the legal system or legislations. Moreover, the conditions or
backgrounds of the old
persuasive precedent are different from the present cases. For newer
precedent, there
is more similarity of the cases. Argument of the legal point can be
reduced.

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