Precedent

What are the weakness of precedent?

* Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons. * There may be a considerable wait for a case to come to court for a point to be decided. * Cases can easily be distinguished on their facts to avoid following an inconvenient precedent. * There is far too much case law and it is too complex. * The judges are drawn from too narrow a social background to be truly representative of the people of this country.

What is per incurium?

If a decision is held to be per incurium it means that it has been ruled by a superior court to be wrong in law.

What are the strengths of precedent?

* There is certainty in the law. By looking at existing precedents it is possible to forecast what a decision will be and plan accordingly. * There is uniformity in the law. Similar cases will be treated in the same way. This is important to give the system a sense of justice and to make the system acceptable to the public. * Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations. * Judicial precedent is practical in nature. It is based on real facts, unlike legislation. * Judicial precedent is detailed. There is a wealth of cases to which to refer.

What is distingushing?

A court can avoid using a ratio decidendi by distinguishing the present case from the earlier case by stating that the facts of the two cases are different and that the earlier law should be ignored.

What is over-ruling?

A higher court can overrule a decision made in an earlier case by a lower court eg, the Court of Appeal can overrule an earlier High Court decision.

What is Precedent?

A system of creating law used by judges.

What is stare decisis?

It means "to stand by the decision" in other words the judge has to follow the decision from an earlier case if the facts are very similar.

What criticism can be made about judges making new laws?

Judges are appointed and are not democratically elected therefore there is no democratic scrutiny of their decisions.

What is reversing?

Reversing is the overturning on appeal by a higher court, of the decision of the court below that hearing the appeal. The appeal court will then substitute its own decision.

What is ratio decidendi?

The "reason for the decision"; this is the actual piece of law that will be re-used in future cases where the facts are very similar. Ratio decidendi is binding on all lower courts.

What is obiter dicta?

To "talk around" the case and the law involved. This is the part of the judges dicta where the judge discusses the general law around the case being heard. Judges comments which are obiter are not binding in future cases but can be "persuasive" if there is no ratio decidendi to follow.

How does precedent work?

When a case comes to court the judge will examine the facts of this case and check to see if there are any earlier cases with similar facts. If there is an earlier case, the judge will use the decision from the earlier case as the law to be applied to the new case. If there are no earlier cases to use, the judge will create a new precedent based upon the spirit of the law.

Do Judges create new law?

Yes, by creating new precedents they create new laws.