Detailed Revision Notes On British Judicial Precedent

808 words - 3 pages

Judicial Precedent.

Introduction.

§ Judicial precedent means the use of decisions made by judges in the past as a source of law, where a similar case arises the past decision is used as a guideline.

§ It is also known as case law.

§ It is a major source of law both today and historically.

§ If law on a particular source of law is not found in legislation - law will be found through common law reasoning.

§ That is to say that if no Act of parliament or Dl to follow then judges look at the past decision of a similar case to find a solution to the case before them

§ The hierarchy of the courts is also important to know as the lower courts must follow the past decisions of the higher courts- also known as biding precedent.

Stare decisis.

§ Jp is known as stare decisis where judges extend and modify existing rules.

§ This means `stand by what has been decided.

§ The system of JP allows for consistency and gives sufficient flexibility for law to develop.

Ration Descidendi.

§ Judge explains his reasons for a decision,

§ States the statement of facts

§ Summarizes the arguments of the lawyers

§ And gives an account of how the decision was reached.

Types of precedent.

1. Declaratory Precedent.

§ Where a point of law has not yet been decided.

§ Decisions will be made to form new precedent for future cases to follow.

§ Therefore judges do have a rolw in making law.

§ However they usually look at cases which are closet in principle- Called Reasoning by Analogy- the judge may decide to use similar rules.

2. Binding Precedent.

§ Only created when the facts of thhe second case are sufficiently similar to the original case.

§ And if the decision was made by a superior court.

§ That is to say that the original decision had not been over- ruled ( no longer good law.)

3. Persuasive precedent.

§ Precedent that does not have to be followed

§ BUT carries great weight

§ For example obita Dicta Statements- if the situation was to be different treated with respect- High trees case.

§ Decisions of Judicial committee of the privy council.

§ Decisions of the lower courts

§ A dissenting judgement.

** The courts in England and Wales operate a rigid doctrine of JP, where each court is bound to follow any decision made by a court abov it in the heirachy,

European Court of Justice.

§ Highest court affecting UK `s legal system.,

§ Only concerned with matters of European law.

§ Any decision are binding on all courts in the Uk.

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