The Doctrine of precedent
The doctrine of precedent , following passed decisions of the court, originates from the Latin maxim ‘ stare decisis et non quieta movere’ translating as ‘stand by what has been decided and do not unsettle the established’.
By following passed decision the law is equally and fair across the board.
Passed decisions: Ration Decedendi
Our legal system, primarily the courts, are only able to follow passed decisions of judges if the decisions and reasoning’s are known.
At the end of every case there is a judgment which will include a speech made by the judge giving his decision on the case and most importantly, giving his reasons for reaching such a conclusion.
The most common form of judgement that judges seem to follow is reviewing the facts of the case, the arguments given by both parties to the case and then the law he applied in order to reach his conclusion.
These principles are what is known as the ratio decedendi, which means reasons for decision.
This is what creates the precedent for future judges to follow when faced with a case of similar facts and material.
Other things said: Obiter Dicta
The remainder of the judgment is called the obiter dicta. This is the part of the judgement that future judges are not bound to follow.
In the Obiter Dicta, the judge may make speculations on what his decision may have been if certain circumstances were different, or if the evidence provided was not the same.
If there is more than one judge hearing a case, then it is very possible that there will be more than one judgement presented at the end of the case.
There may be 2 slightly different judgements, or very commonly, both judges will agree on the decision and the reasons for making that decision.
For more information on:
- Original precedent
- Binding precedent
- Persuasive precedent