UNIT 3 LEGAL STUDIES
AO3- THE ROLE OF THE
COURTS
Precedent (Chapter 4)
What is common law?
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A system based on individuals coming before the courts to
settle disputes.
Today many of the common law principles have been written
into statute law. If there is ever a conflict between the two,
statute law will prevail.
Judge-made law
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Although judges main role is to adjudicate cases and
settle disputes, they also have a secondary role as lawmakers.
Judges can make law in two ways:
1. Judges make law on a new issue that arises in a case
before them, or on which there is no previous common
law or statute.
2. Through the interpretation of legislation as it applies
to the case before them (statutory interpretation)
Court hierarchy
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The doctrine of precedent, relies on a hierarchy of
courts to effectively operate
What is a precedent?
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Is the reported judgement of a court that sets a
principle in law. The reason for the decision, the
ratio decidendi, becomes a statement of court-made
law.
Doctrine of precedent.
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The process and rules used by courts to decide
whether they should use the legal principles
established in a previous case.
Judges follow the previous decisions of higher courts
in similar or like cases. This is also known as stare
decisis, which means to stand by what has been
decided.
Ratio decidendi
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‘The reason for the decision’
Not everything said by a judge in the course of reaching
the decision is a precedent.
ONLY the ratio decidendi forms the legal principle to be
used in future cases.
According to the doctrine of precedent, in cases that have
similar circumstances, the ratio decidendi of higher courts
will be binding on all lower courts (in the same court
hierarchy)
Obiter dictum
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‘Statement made by the way’
A statement or opinion made by the judge within the
judgement is not binding (does not have to be
followed in the future), however it can form a
persuasive precedent. That is can assist judges in the
future cases.
Stare decisis
‘ To stand by what has been decided’
Lower courts must stand by, or follow, the decisions of
the higher courts in ‘like cases’.
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Precedents can only be set in higher courts.
All lower courts are bound by the decisions of higher
courts in the same hierarchy,
Decisions of courts at the same level, or equal standing,
are not binding.
Binding VS persuasive precdents
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Precedents can either be binding or persuasive.
Binding: a legal principle that MUST be followed. The
doctrine of precedent depends on lower courts
following the decisions of higher courts, when a
similar or like case comes before them
Persuasive: a convincing argument, but one that does
not have to be followed because it is not binding. It
is not a decision made by a higher court in the same
court hierarchy in a case with similar facts.
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Obiter dictum
Ratio decidendi of courts of the same level or lower
in the same hierarchy
The decision of a court in another hierarchy
How precedent operates..
Learning Activities
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Summary: Common law, Precedent, doctrine of
precedent, ratio decidendi, obiter dictum, stare
decisis, binding precedent, persuasive precedent.
Complete precedent folio questions 1-5 pg 170
Precedent questions.