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.
Where a case comes to court including facts that have never been seen before , then whatever the judge decides as the outcome will create original precedent for future judges to follow.
Due to the fact there are no case decisions to follow, the judge is most likely to look at a number of cases with similar facts in order to make his decision.
This occurs when a decision from a previous cases binds all future judge to follow even if they do not agree with the principles of law used in the given situation. Binding precedent will only occur where the facts of the original case are sufficiently similar to those that appear in new cases, and the decision was made by a court that is higher that the court currently deciding upon the issue.
This involves passed decision made by the court that are not legally binding on future judges, but may influence a judges decision if they believe the legal principles used and the reasoning behind such a decision is relevant to the present case, they are therefore persuaded to follow.
Persuasive precedent may arise from a number of situations including:
- May be persuaded by decisions made in lower courts
- Decisions of the judicial committed or of the Privy Council
- Statements made in the Obiter dicta (other things said by the judges)
- A dissenting judgement (not made by the leading judge of the case)
- Decisions of courts in other countries