§ 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.
§ 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.
§ 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.