Precedent

What is stare decisis?

The principle that ratios may bind

What does it mean to distinguish a precedent?

When a judge decides a precedent is not in point

What are the exceptional cases where precedent is not binding?

1. Subsequent legislation: where precedent has been overtaken by legislation, it is no longer applied 2. Per Incuriam: Where the precedent was laid down by a court which had not considered all the relevant law, and therefore came to an erroneous conclusion, it is described as per incuriam and not binding. 3. In age of case reporting, this is rare. 4. Age and defective reporting 5. Societal changes: Where the reason for a law ceases to exist, so does the law itself. (Commerzbank AG v Large)

What is the declaratory power?

An exceptional power held by the High Court of the Justiciary to declare behaviour which it considers morally wrong to be a criminal offence even though it was not regarded as criminal before. Example is Khaliq v HM Advocate which rendered criminal the selling of glue-sniffing kits as willful supply of potentially noxious substances.

What is a ratio decidendi?

Because every case adjudicated is decided according to a rule or principle, the decision must reflect that rule or principle, which must therefore be discoverable from the opinion or judgement itself. This rule/principle it the ratio decidendi

When can a judge in a lower court reject a rule of precedent?

Can only reject the rule on strong ground, such as new social conditions that render an ancient rule unworkable or out of date.

Which legal heritage does precedent come from?

Common law

How is it decided if a precedent is binding?

Dependent of whether or not the ratio is in point (when the issues in that case are the same to an appropriate level of generality as the issues in the case which are to be decided) and if upon the relative position in the court hierarchy of the court examining the precedent to the court which laid down the precedent.

What is the obiter dicta?

Describes any reasoning of a judge which is not part of the ratio. Often includes observations upon the law or hypothetical examples. They are not considered part of any precedent established by the decision. While not binding, they can be considered by subsequent courts as persuasive.

What is nobile officium?

Exceptional exercise of legislative power by the Court of Session and High Court of Judiciary. Allows court to provide a remedy where none exists but the court feels it should. Example is Wylie v HM Advocate where the lack of provisions on sentencing for contempt of court was held to justify invoking the nobile officium.

Which factors influence the persuasiveness of a precedent?

How convincingly the judges in the precedent have expressed themselves, how well respected those judges are, how high in the hierarchy the decision was taken, whether it was unanimous or not, and the subsequent judicial history of the precedent.

Why does a system of precedent emerge?

It emerges from the instinctive demand of justice that like cases are treated alike even where no clear written law covers the situation and from the nature of the court system as a system of adjudication. Because the decision of the court is determinative (winner and loser, not compromise), it must be justified by reference to a rule of general application.