Precedent

TASK 1

What is the principle of stare decisis and what are the different binding natures

of ratio decidendi and obiter dicta?

Principle of Stare decisis

In United States and England, Stare decisis is a legal doctrine, which makes it obligatory for

the courts to follow the rule of precedents and do not disturb the settled points whenever a

similar situation / case arises. Under stare decisis, once a court has taken a decision regarding

a case in past, the cases of same nature must be treated in the same way from the same court

or lower courts in that jurisdiction. Moreover, it will no longer be open to examination or to

a new ruling by the same court or those who are bound to follow it. According to Chancellor

Kent, once a law has made for a case, it becomes an authority for similar cases, as it is the

highest evidence that the law can be applied to a particular subject. All the judges must

follow the law unless it stands unreserved in case of any misunderstanding or the law was

misapplied before in that particular case. The law is then in the favor of correction upon

solemn arguments and mature deliberation. The Judge Cooley observes that if the same court

or any other court doubts the correction of the decision made, it is better to weigh the

decision before disregarding it[ CITATION Bla86 \l 1033 ].

Nature of Ratio Decidendi and Obiter Dicta

Ratio Decidendi means the reason or foundation for a decision. Ratio Decidendi is a field of

law that refers to the principle necessary to determine the outcome of a case adopting the line

of reasoning behind the case. It is a legal reasoning behind the judgement of the jury. It is the

binding part of a judicial decision and authoritative in nature, because of its direct link to the

subject under discussion. Ratio includes all the moral, political or social principles on which

a court relies before making a decision about a case. Ratio decidendi form the basis for a

decision in binding precedents and non-binding precedents. In binding precedents, the lower

courts must follow the decisions made by a higher court, while in non-binding precedents,

the decisions are made by an equivalent court and their close observance is not

necessary[ CITATION Con19 \l 1033 ].

Obiter dicta on the other hand refers to the statements of law that go beyond the

requirements of a particular case and the statements that are not crucial. It includes all those

statements that are not legal and are not a part of the ratio decidendi. In England, it has no

binding effect upon a coordinate court or subordinate court. The judges can benefit from it as

it provides context for the judicial decision however; they are not bound to follow it since it

is not strictly relevant to the matter in the original case. Its helps a law to grow. It has

persuasive power. For example, while trying to convince the judge of someone’s innocence,

the persuasive statements in addition to the facts are obiter dicta. The judges can criticize the

defects in the legal system in obiter dicta[ CITATION Sub \l 1033 ].

TASK 2

Which cases are reported in the UK and why, and how does the court hierarchy in

England and wales operate in relation to precedent.

The structure of English court consists of five levels. Which namely from the top are the

House of Lords, Court of Appeal, Divisional Courts, High Court, Crown Court and

Magistrates’ Courts & County Courts. The precedent doctrine constitute the fundamental

part of the English legal system as it provides certainty to the law and sets a hierarchy of the

court system. The top hierarchy of courts is the House of Lords. The doctrine states that once

a decision is made by the House of Lords or by Court of Appeal, the rest of the courts (lower

courts) are bound to follow it. Even the House of Lords had to follow its own decisions until

1966 by Lord Gardener, who stated regarded precedent a crucial base for enforcing law

however he also said that sometimes too much adherence could lead to injustice in a specific

case. The next court in hierarchy is the Court of Appeal, which divides into the Civil division

and the Criminal division. Both of them are bound to follow the precedents set by House of

Lords and their own decisions once made. Divisional Courts (Queen’s Bench Division,

Chancery Division and Family Division) follow the Court of Appeal and then High Court is

bound to follow every court above it; however, there is no restriction to follow its own

decisions[ CITATION How18 \l 1033 ].

However, not all the cases are bound to follow the precedent cases. For that, judges need to

distinguish their current case from the precedent case. It involves finding different facts

between the two cases. We can see distinguishing example in the cases of Belfour v Belfour
(1919) and Merritt v Merritt (1990), in which the case of Merritt v Merritt did not follow the

earlier case because of legal effect of contract difference[ CITATION How18 \l 1033 ].

In English law system, there are different types of precedent. In original precedent, a first

precedent is formed for a case that has not ruled before. As it is the first decision based on a

certain part of law, judges can form the precedent without looking for an analogy in the past.

A constructor of tower was sued for interference of television reception and plaintiff lost the

case. The judge cited Aldred’s case as an original precedent for the judgement. Another one

is persuasive precedent. The judges are not bound to follow this precedent however; they can

consider it before making a decision. The courts with lower hierarchy can produce a

persuasive precedent. For example, in the case of R v R in 1991, the House of Lords

accepted the decision made by the Court of Appeal. The decision stated raping between a

husband and a wife legal. Obiter dicta is the other source of persuasive precedent. R v Howe

(1987), a case of the House of Lords, the obiter dicta included the stating duress could not be

used as a defense to an attempted murder. It was used in later in case of R v Gotts (1992) in

the Court of Appeal. Disagreeing judgement is referred to a situation, where minority of

judges give reasoning to object to a decision made by majority of judges. The higher courts

are more likely in a position to dissent judgement for the same case previously resolved. In

some of the cases, rules made by the other countries’ courts are influential over the cases in

English. The third one is binding precedent, which is a legal rule made within the superior

court of hierarchy i.e. House of Lords and the courts below it are bound to follow that rule,

which includes House f Lords itself. An example is the case of Gomez, which followed the
precedent created in the case of Morris. Because of the binding power of European Court of

Justice over the English’ law system, binding precedents need to keep pace with the

European level. We can see an example in the case of Pickstone v. Freemans and Finnegan

v, where an appeal occurred in the Court of Appeal by Ms. Pickstone for the complain of

getting less pay than male workers while doing the work of equal value[ CITATION Doc20 \l 1033 ].

TASK 3

Explain the advantages and disadvantages of precedent and the means by which

precedent can be avoided.

A precedent is a policy by which the lower courts in hierarchy are bound to follow the rules

set by a higher court in a previous judicial decision. The case has a binding nature if the law

applied previously still stands a good law i.e. it is not overruled and there is a sufficient

degree of similarity between the precedent case and the case under discussion.

Advantages[ CITATION Nat19 \l 1033 ]

1. It offers consistency and predictability to the legal system. It provides a guarantee that

the cases of similar nature will be treated alike and there will be no unjust treatment. The

existence of judicial precedent helps lawyers in advising their clients whether they should

consult court for a particular case or not and are able to tell them how likely the case will

be dealt.

2. It offers a certain measure of flexibility since it has the right to make any necessary

amendments in the precedent law because of appeal occurred in the court. Judges do not
 write laws but their correct interpretation in every way possible is their duty. In this way,

a check and balance system is maintained which protects the rights of people in best

possible way.

3. Because of precedent, the solution for a similar case already exists and judges spend

less of their time to conclude a result.

4. This system of judicial precedence focuses on fairness. It can reduce crime rate

because of the awareness of the consequences of specific actions and provides a chance

of protection to the future victims.

Disadvantages[ CITATION Nat19 \l 1033 ]

1. Judicial precedence adds complexity to the legal system. In U.S., judicial system

offers three layers at federal level and three layers at state level to consider a case. This

means that a case could generate six possible precedents for a similar future case.

2. Every case in the system faces some uncertainty before knowing the results until a

final rule is set for that particular case. Some judges willingly depart from the precedent

by doing what they think is right for a particular case while, some follow the precedence

as a rule of law passed by legislature.

3. It provides rigidity even in the cases, which sometimes need flexibility. Because of the

existence of judicial precedence for a significant amount of time, it is usual to apply an

outdated law.

4. It forces a judicial system to look backward instead of looking forward when

necessary to avoid the creation of an unjust system.

5. It provides unnecessary restrictions and creates unnecessary amount of decisions

applicable to the case because of the availability of the total volume of the cases that exist

in the law.

Means to avoid Precedent

Sometimes courts do not agree with a precedent or they want to follow a different approach

for a particular case that is why they avoid precedent. Overruling is a method for avoiding

precedent. Higher courts can overrule the decisions of lower courts and Supreme Court can

overrule its own decisions using Practice statement 1966, which allows departing from a

precedent in order to seek justice[ CITATION Avo \l 1033 ].

References
Anon., 2018. Doctrine of Precedent in English Legal System. February.

Anon., 2018. How the Doctrine of Precedent Operates. February.

Anon., n.d. Avoiding Precedent. Welcome to the BHASVIC Law website - Law 205.

Black, 1886. The Principle of Stare decisis. American law Register.

Content Team, 2019. RATIO DECIDENDI. 17 April.

Natalie, 2019. 16 Advantages and Disadvantages of Judicial Precedent. 4 May.

Subas, n.d. Obiter Dicta and its Application in the judicial process.