Judicial Precedent
explanatory Essay
780 words
Judicial Precedent ESSAY: a) Explain and illustrate the operation of the doctrine of judicial precedent. b) How far is it true to say judges are bound by decisions in earlier cases? A) Judicial precedent is where the past decisions of the judges create law for future judges to follow. English precedent is based on the Latin, stare decisis, meaning stand by what has been said in the past. This allows the rules system to be consistent: like cases treated alike, and it is just, as people can decide on a course of conduct knowing what the legal consequences will be. Judicial Precedent can only operate if the legal reasons for past decisions are known, therefore, at the end of the case there will be a judgement. This will contain the precise words of the judge and follow a Law Report, which consists of full accounts of cases that are considered important. It will give an account of the facts of the case and a summary of the decision. The principles of law that the judge used to make his decision are the important part of the judgement, and are known as ratio decidendi, or 'the reason for deciding'. This is what creates a precedent for judges to follow in future cases. This is identified not by the judge that makes the decision, but by lawyers looking at it afterwards, they may therefore have different views on it. The remainder of the judgement is called obiter dicta and in future cases, judges do not have to follow it. These are other things the judge said, such as the reasoning and explanation of why he made the decision. It may also contain a hypothetical situation, what his decision would have been if the facts of the case had been different, and the legal reasoning may be considered in future case... ... middle of paper ... ...reach of contract, there was enough different facts to distinguish them. Overruling is where a court in a later case states that the legal rule decided in an earlier case is wrong. It is used to prevent an injustice if the judges feel the first decision was wrong. This is illustrated in Pepper v Hart (1993) when the House of Lords ruled that Hansard could be consulted in statutory interpretation. This overrules the earlier decision in Davis v Johnson (1979). The last method is Reversing, and is when a higher court overturns the decision in a lower Court of Appeal, in the same case. This is again illustrated in Davis v Johnson (1979). Because of distinguishing, overruling, reversing and persuasive precedents, it is true to say that although judges are bound rigidly to follow decisions made in earlier cases, they do have ways of avoiding it if certain facts comply.
In this essay, the author
- Asks how far is it true to say judges are bound by decisions in earlier cases?
- Explains that judicial precedent is where the past decisions of the judges create law for future judges to follow.
- Explains that a judge's judgement can only operate if the legal reasons for past decisions are known. this creates precedent for judges to follow in future cases.
- Explains that the courts in england and wales have a very rigid doctrine of judicial precedent. decisions made in the european court of justice bind all other courts since 1973 and can overrule past decisions.
- Explains that a binding precedent is only created when the facts of the second case are sufficiently similar to the original case. persuasive precedent can come from courts lower in the hierarchy.
- Explains the different methods used by judges to prevent them from following precedents. distinguishing is when a judge finds the material facts of the case are sufficiently different for him to distinguish between the present case and previous precedent.
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