Doctrine (rules) of
Precedent
Overview, Binding and Persuasive
predent
PRECEDENT – a definition
Precedent is a major source of law –
…precedent is all the
decisions I have made
in the past that other
judges now follow.
Precedent is also known as
CASE LAW
PRECEDENT – and Stare Decisis
It means – let the previous decision stand.
It’s important because Points of law decided in previous similar cases
must be followed.
Earlier decisions influence later cases that are
similar.
Higher courts assume priority over lower courts.
Higher courts therefore BIND lower courts.
The system is predictable, fair and consistent.
Binding precedent is the most important part of
Stare decisis - it provides consistency in law
A Level Law - Hierarchy of courts Civil Courts
Binds all
Courts but only
On European law
Binds itself
And lower courts
European Court of Justice
Supreme Court
Only court that can
Overrule it’s own
decisions
Binds itself
And lower courts
Court of Appeal Civil Division
Binds itself
And lower courts
Divisional courts
Binds itself
And lower courts
High Court
Doesn’t bind
any court
Magistrates Court
County Court
A Level Law - Hierarchy of courts Criminal Courts
Binds itself
And lower courts
Binds itself
And lower courts
Binds itself
And lower courts
Supreme Court
Only court that can
Overrule it’s own
decisions
Court of Appeal Criminal Division
Queens Bench Divisional court
Doesn’t bind
any court
Crown Court
Doesn’t bind
any court
Magistrates Court
Stare Decisis
– where’s it all written down?
For stare decisis to work – judges need access to
details of past cases.
Earliest cases – 13th century.
1865 – Council of Law Reporting established.
Most widely used modern record – All England Law
Reports.
LEXIS – electronic law reporting system.
Huge increase in electronic systems and data-bases
on-line through the internet.
Web portal to cases and blogs on law - See Matrix
Churchill blog.
Case notes of A level law. LRC E law student.
PRECEDENT and the ratio decidendi
It means the reason for deciding
If the obiter dicta explains how I got to my decision . . .
the ratio decidendi
is the heart of the actual
decision itself
The ratio decidendi is what later judges
must follow - the essence of Stare decisis
The ratio decidendi is the KEY to the decision
that has been made.
The ratio decidendi BINDS later judges hearing similar cases.
This especially the case in lower courts and the same court.
PRECEDENT and Obiter Dicta
It means other things said.
As I make my judgement, I may
give supporting arguments and
points that explain how I
arrived at my decision in order
to make my judgement clearer.
how the decision
might affect
future situations
Obiter
dicta may
include…
my thought
processes
why I arrived at this
decision, and not
another…
PRECEDENT – THE KEY TERMS
PROBLEMS
•Cases often end with more
than one speech. Upto 9 in
the Supreme Court.
STARE DECISIS
•No sub-headings in
judgments to help separate
ratio decidendi from obiter
dicta.
‘Other things
said’ – judges in
future cases do
not have to
follow it.
OBITER DICTA
Precedent – all
the decisions
made in the
past that other
judges now
follow
Stand by what
has been
decided – do not
unsettle the
established.
The reason for
the decision.
Judges in the
same or lower
courts must
follow where
facts are similar.
RATIO DECIDENDI