Unit 5
The Doctrine
of Precedent
The Doctrine of Precedent and Common
Law
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The doctrine of precedent = the very basis of the
common law
Also referred to as judge-made law = result of court
rulings
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Equally important as the law enacted by
Parliament = result of the legislative procedure in
the UK Parliament-made law
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It enables more flexible reaction to certain
provisions of the legislation or concrete case details,
which are not covered by statutes
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Also known as stare decisis = lat. „to stand by
decided matter”
Definition – A precedent is...
A)
something such as a judgment which has
happened earlier than the present, and
which can be a guide to what should be done in the
present case. A decision in court which will show
other courts how to act in future.
B)
an example to be followed: thus, a previous decision
by a superior court on similar facts; or a draft of a
legal document which serves as a pattern in future.
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to set / create a precedent: to make a decision in
court which will show other courts how to act in
future
to follow a precedent: to decide in the same way
as an earlier decision in the similar type of case
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Types of precedent

two types of precedent: binding precedents and
persuasive
Type I
A binding precedent obliges a court to follow its
decision
This type of precedent is called a ‘mandatory
precedent’ in some court systems. A binding
precedent requires all inferior courts to follow the
ratio decendi (reasons for deciding) of superior
courts. It is also binding for the superior court itself.
Type II
- a persuasive precedent can influence a decision
but not compel or restrict it
- Decision of a lower court
- Obiter dicta – additional remarks and
speculations of judges – in a decision of a higher
court
→ provides some insight or explanation into how
the judge interpreted the facts and legal principles,
in order to reach his or her decision.
Precedents and creation of law


ORIGINAL PRECEDENT –creates a new rule of law
DECLARATORY PRECEDENT –merely applies an
already existing rule of law
Distinguishing, overruling and reversing
(ways of avoiding precedents)
I DISTINGUISHING – a method which can be used by a judge
to avoid following a past precedent – facts are sufficiently
different – not bound by the previous case
II OVERRULING – when a higher court decides not to follow a
previous decision of a lower court because it thinks it was
wrongly decided (a higher court overturns and changes a
precedent)
III REVERSING – a higher court overturns the DECISION of a
lower court on appeal (in the same case) because it
disagrees with it (and then it reverses it)
Precedents and the hierarchy of courts
THE HIERARCHY OF COURTS
 the principle of law laid down by superior
courts must be accepted as binding on all
courts of inferior jurisdiction
The rules of precedent apply only to rulings
on points of law, because the facts of two
cases can not be the same.
The Hierarchy of the Courts
European Court of Justice
Supreme Court of the UK
(formerly House of Lords)
Court of Appeal
(Civil Division)
Court of Appeal
(Criminal Division)
High Court
Chancery Division
Family Division
High Court
Queen’s Bench Division
COURTS
Crown Court
County courts
Magistrates’
courts
CIVIL
CRIMINAL
JURISDICTION
S
U
P
E
R
I
O
R
Hierarchy of Civil Courts
The Supreme Court of the UK – the highest court of
appeal
The Court of Appeal – appeals from the High court and
county courts
The High Court of Justice – first instance court for
complex cases, defamation;
second-instance court for appeals
from magistrates’ courts
Magistrates’ courts – first-instance court for family
cases
Hierarchy of Criminal Courts
The Supreme Court of the UK – the highest court of appeal
The Court of Appeal – appeals from the Crown
court and the Hight Court
of Justice (Queen’s Bench
Division)
The High Court of Justice – Queen’s Bench Division – appeals
from the Crown Court or
magistrates’ courts
Crown Court – first-instance court for serious criminal cases
(indictable offences)
Magistrates’ courts – first-instance court for summary offences
Advantages in applying precedents
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
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Consistency in application and predictability of
court decisions
Flexibility – easy adaptation to new
circumstances of a case (when statutes do not
provide a clear answer)
Age-long recording of cases provides for a huge
amount of details, circumstances, points of law,
that enhance precision in the creating of law
Danger / Disadvantages in applying
precedents
Legalism is the result of a belief in certainty and rulefollowing, which is essential for the doctrine of
precedent.
If a precedent is followed too strictly there is a danger
of inflexibility. Mistakes can be made even by the
most distinguished judges and there should be a
possibility to react appropriately in an individual case.
It is good to adhere to a precedent but also to be willing
to soften its application in appropriate cases.
Expressions from Unit 5
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founded on the doctrine of precedent
the hierarchy of courts
to be binding on all courts (of inferior jurisdiciton)
to set / establish / create a precedent
reasons for departing from a precedent
it is a question of law / a question of facts
a belief in certainty and rule-following
judges make mistakes
the mistakes of the past
the best / possible approach to precedent
to adhere to precedent
the application of precedent
Match a Latin term and a definition
(two definitions are too much)
LATIN TERMS
DEFINITIONS
Ratio decidendi
to stand by decided matter
Stare decisis
Obiter dicta
saying in passing (comments, arguments)
the reason for a decision
reasons for not changing a ruling