The Doctrine of Precedent in the UK Legal System
The Doctrine of Precedent
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Revision
1.
Outline the system of civil courts in the UK.
2.
Outline the system of criminal courts in the UK.
3.
Who are justices of the peace?
4.
What was the highest court in the UK before 2009?
5.
Who is responsible for judicial appointments?
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Precedent
A previous decision made by a superior court on
similar facts - the rule of precedent requires that in
certain circumstances a decision made on a legal
point made in an earlier case must be followed
The doctrine of precedent (
stare decisis
)
The hierarchy of courts
The doctrine of precedent
•
Stare decisis
:
t
he doctrine of judicial precedent is based on stare
decisis
abiding by a previous decision
.
/
Once a
point of law has been decided in a particular case,
that law must be applied in all future cases
with
the
same material facts.
/
•
The doctrine is
:
- All courts are bound to follow decisions made by
their superior courts (courts above them);
- Appellate courts are normally bound by their own
past decisions
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How does the doctrine of precedent work?
Judges are required to follow the decisions made
in previous cases.
By doing so, they secure
a consistency in the law
.
Also, people referring their cases to law can make
an educated guess about the likely outcome of
their case (i.e. about their potential success )
How can a precedent be treated?
The counsels and the judge can:
1.
CITE a precedent, a case – bring a precedent to the
attention of the court
2.
FOLLOW a precedent – establish that the principles
applied in the precedent correspond to the case in
hand and abide by the precedent
3.
DISTINGUISH THE CASE – find that the facts of
the case are different and that the same principles,
i.e. precedent cannot or should not be applied
The Hierarchy of Courts
-
relationship of mutual
superiority
/
inferiority
between courts within the same branch
- there may also be
equality
between courts of
the same level within the same branch but the
judges in these courts are also expected to
follow each other’s precedents and to explain
their decision not to do so.
- when a point of European Law is involved, the
decisions of the
European Court of Justice
are
binding on all courts in England and Wales
- the House of Lords used to be the highest court
in England and Wales; since 1 October 2009 it is
the Supreme Court of the United Kingdom
The Hierarchy of Courts (cont.)
- when a point of European Law is involved, the
decisions of the
European Court of Justice
are
binding on all courts in England and Wales
- the House of Lords used to be the highest court
in England and Wales;
- since 1 October 2009 this role was assumed by
the Supreme Court of the United Kingdom
Types of precedents
Original
Declaratory
Binding
Persuasive
If there is no previous decision on a point of
law that has to be decided by a court, the
decision made in that case on that point of
law is viewed as an original precedent
When it needs to form an original
precedent, the court will reason
by analogy
(in principle, it would consider the cases
nearest to that being tried)
Original Precedent
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Declaratory precedent
:
-
the judges in the case used as precedent merely
declared what the law has always been
- d
eclaratory theory of law making
-
William Blackstone
, “…
judges do not create or
change laws. They simply discover and declare
what the law has always been.
”
-
i.e.
case law operates retrospectively since the
law
,
as declared
,
has always
existed.
Binding Precedent:
-
A past decision is binding if:
•
the legal point involved is the same as the legal
point in the case that is being decided
•
the earlier decision was made by a court
superior to the present court, or by a court at
the same level which is bound by its own past
judgments
•
the point was argued in the case
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Persuasive Precedent
:
-
a precedent that will be considered by the court
and by which the court may be persuaded, but
which the court does not have to follow, e.g.
- obiter dicta
,
- a dissenting judgment, or
- ratios
from decisions by inferior courts
(courts that are lower in the hierarchy)
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Law Reports
The reasons for decisions of past cases must be
properly recorded in order for the precedent system
to operate effectively.
From 1537 to 1863 various private law reports were
used.
Since
1863
the
Incorporated Council of Law Reporting
has been producing
the official law reports.
Judgments of superior courts are available on their
official sites on the Internet
Ratio decidendi
•
Ratio decidendi = the reason for the decision
principles of law essential to the decision
at hand.
-
It is also defined as
:
“any rule expressly or
impliedly treated by the judge
as a necessary step in reaching his
conclusion”.
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Ratio decidendi
(
cont.
)
•
The functioning of the doctrine of judicial precedent
rests
on the possibility to determine what a
point of law
is.
•
While delivering a judgment, judges set out their reasons
for reaching a decision. These reasons on which judges
base their decisions are called the
ratio decidendi
of the case.
•
Ratio decidendi
forms the legal principle that becomes a
binding precedent. This precedent must then be followed
in all future cases with the same (or similar) material facts.
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Obiter dicta
•
Statements in passing (‘things said by the way’)
•
Statements of principles of law not relevant to the
decision in the case
•
Although not relevant, they can be persuasive
Options for Avoiding the Precedent
Judges may avoid
to
follow a previous precedent by:
Overruling
=
a court higher in the hierarchy departs
from a decision made in a lower court.
The previous decision is no longer
binding.
Reversing
=
a higher court departs from the decision
of the lower court on appeal.
Distinguishing
=
the facts of the case are deemed
suf
-
ficiently different so that the
previous
case is no longer binding
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Arguments in Favour of the
Doctrine of Precedent
•
Time saving
•
Certainty
•
Justice
•
Consistency
•
Flexibility
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Arguments Against the Doctrine
•
Promotes laziness
•
Stagnation
•
Backwards looking
•
Difficult to remedy mistakes
Vocabulary
Binding precedent
– obvezujući presedan
Persuasive precedent
– preporučljivi presedan
Precedent law
– pravo riješenih slučajeva
Divisional courts
– sudski odjeli Visokog suda
Law Reports
– zbirka sudskih odluka
Dissenting judgment
– nejednoglasna sudska odluka
(odluka uz izdvojeno mišljenje)
Ratio decidendi
– razlog za donošenje odluke
Obiter dicta
– usputne primjedbe
The doctrine of precedent, also known as stare decisis, is a fundamental principle in the UK legal system that requires courts to follow previous decisions on similar facts. This system ensures consistency and predictability in the application of law. The hierarchy of courts dictates the binding nature of precedents, with the Supreme Court being the highest authority since 2009. Judges must either follow, distinguish, or cite precedents when making decisions, maintaining a structured approach to legal reasoning.
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Presentation Transcript
Revision 1. Outline the system of civil courts in the UK. 2. Outline the system of criminal courts in the UK. 3. Who are justices of the peace? 4. What was the highest court in the UK before 2009? 5. Who is responsible for judicial appointments? Naslov predavanja Autor predavanja 2
Precedent A previous decision made by a superior court on similar facts - the rule of precedent requires that in certain circumstances a decision made on a legal point made in an earlier case must be followed The doctrine of precedent (stare decisis) The hierarchy of courts Naslov predavanja Autor predavanja 3
The doctrine of precedent Stare decisis : the doctrine of judicial precedent is based on stare decisis abiding by a previous decision. / Once a point of law has been decided in a particular case, that law must be applied in all future cases with the same material facts. / The doctrine is: - All courts are bound to follow decisions made by their superior courts (courts above them); - Appellate courts are normally bound by their own past decisions
How can a precedent be treated? How does the doctrine of precedent work? The counsels and the judge can: Judges are required to follow the decisions made in previous cases. attention of the court 2.FOLLOW a precedent establish that the principles applied in the precedent correspond to the case in hand and abide by the precedent 3.DISTINGUISH THE CASE find that the facts of the case are different and that the same principles, i.e. precedent cannot or should not be applied 1.CITE a precedent, a case bring a precedent to the By doing so, they secure a consistency in the law . Also, people referring their cases to law can make an educated guess about the likely outcome of their case (i.e. about their potential success ) Naslov predavanja Autor predavanja 5
The Hierarchy of Courts - relationship of mutual superiority/inferiority between courts within the same branch - there may also be equality between courts of the same level within the same branch but the judges in these courts are also expected to follow each other s precedents and to explain their decision not to do so. - when a point of European Law is involved, the decisions of the European Court of Justice are binding on all courts in England and Wales - the House of Lords used to be the highest court in England and Wales; since 1 October 2009 it is the Supreme Court of the United Kingdom
The Hierarchy of Courts (cont.) - when a point of European Law is involved, the decisions of the European Court of Justice are binding on all courts in England and Wales - the House of Lords used to be the highest court in England and Wales; - since 1 October 2009 this role was assumed by the Supreme Court of the United Kingdom
Types of precedents Original Declaratory Binding Persuasive
Original Precedent If there is no previous decision on a point of law that has to be decided by a court, the decision made in that case on that point of law is viewed as an original precedent When precedent, the court will reason by analogy (in principle, it would consider the cases nearest to that being tried) it needs to form an original
Declaratory precedent: - the judges in the case used as precedent merely declared what the law has always been - declaratory theory of law making - William Blackstone, judges do not create or change laws. They simply discover and declare what the law has always been. - i.e. case law operates retrospectively since the law, as declared, has always existed. Naslov predavanja Autor predavanja 11
Binding Precedent: - A past decision is binding if: the legal point involved is the same as the legal point in the case that is being decided the earlier decision was made by a court superior to the present court, or by a court at the same level which is bound by its own past judgments the point was argued in the case
Persuasive Precedent: - a precedent that will be considered by the court and by which the court may be persuaded, but which the court does not have to follow, e.g. - obiter dicta, - a dissenting judgment, or - ratios from decisions by inferior courts (courts that are lower in the hierarchy) Naslov predavanja Autor predavanja 13
Law Reports The reasons for decisions of past cases must be properly recorded in order for the precedent system to operate effectively. From 1537 to 1863 various private law reports were used. Since 1863 the Incorporated Council of Law Reporting has been producing the official law reports. Judgments of superior courts are available on their official sites on the Internet Naslov predavanja Autor predavanja 14
Ratio decidendi Ratio decidendi = the reason for the decision principles of law essential to the decision at hand. - It is also defined as: any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion . 15
Ratio decidendi (cont.) The functioning of the doctrine of judicial precedent rests on the possibility to determine what a point of law is. While delivering a judgment, judges set out their reasons for reaching a decision. These reasons on which judges base their decisions are called the ratio decidendi of the case. Ratio decidendi forms the legal principle that becomes a binding precedent. This precedent must then be followed in all future cases with the same (or similar) material facts. 16
Obiter dicta Statements in passing ( things said by the way ) Statements of principles of law not relevant to the decision in the case Although not relevant, they can be persuasive Naslov predavanja Autor predavanja 17
Options for Avoiding the Precedent Judges may avoid to follow a previous precedent by: Overruling = a court higher in the hierarchy departs from a decision made in a lower court. The previous decision is no longer binding. Reversing = a higher court departs from the decision of the lower court on appeal. Distinguishing = the facts of the case are deemed suf- ficiently different so that the previous case is no longer binding
Arguments in Favour of the Doctrine of Precedent Time saving Certainty Justice Consistency Flexibility Naslov predavanja Autor predavanja 19
Arguments Against the Doctrine Promotes laziness Stagnation Backwards looking Difficult to remedy mistakes Naslov predavanja Autor predavanja 20
Vocabulary Binding precedent obvezuju i presedan Persuasive precedent preporu ljivi presedan Precedent law pravo rije enih slu ajeva Divisional courts sudski odjeli Visokog suda Law Reports zbirka sudskih odluka Dissenting judgment nejednoglasna sudska odluka (odluka uz izdvojeno mi ljenje) Ratio decidendi razlog za dono enje odluke Obiter dicta usputne primjedbe
