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- Superoneratione Pasturae
- Introduction
- The Court Hierarchy
- Avoiding Precedents
- Advantages and Disadvantages of Precedent
- The Judges’ Role in Precedent
Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisisie, to stand by the decided. In practice, this means that inferior courts are bound to apply the legal principles set down by su...
THE EUROPEAN COURT OF JUSTICE Under s3(1) of the European Communities Act 1972, decisions of the ECJ are binding, in matters of Community law, on all courts up to and including the House of Lords. THE HOUSE OF LORDS This is the highest court in the land unless a matter of EC law is involved. The House of Lords was bound by its own previous decision...
DISTINGUISHING
A binding precedent is a decided case which a court must follow. But a previous case is only binding in a later case if the legal principle involved is the same and the facts are similar. Distinguishing a case on its facts, or on the point of law involved, is a device used by judges usually in order to avoid the consequences of an earlier inconvenient decision which is, in strict practice, binding on them. What is reasonably distinguishable depends on the particular cases and the particular c...
OVERRULING
A higher court can overrule a decision made in an earlier case by a lower court eg, the Court of Appeal can overrule an earlier High Court decision. Overruling can occur if the previous court did not correctly apply the law, or because the later court considers that the rule of law contained in the previous ratio decidendi is no longer desirable.
REVERSING
Reversing is the overturning on appeal by a higher court, of the decision of the court below that hearing the appeal. The appeal court will then substitute its own decision.
ADVANTAGES
* There is certainty in the law. By looking at existing precedents it is possible to forecast what a decision will be and plan accordingly. * There is uniformity in the law. Similar cases will be treated in the same way. This is important to give the system a sense of justice and to make the system acceptable to the public. * Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations. * Judicial precedent...
DISADVANTAGES
* Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons. * There may be a considerable wait for a case to come to court for a point to be decided. * Cases can easily be distinguished on their facts to avoid following an inconvenient precedent. * There is far too much case law and it is too complex.
The old view of the judges’ role was that they were merely ‘declaring’ the existing law (the ‘declaratory theory’). Lord Esher stated in Willis v Baddeley[1892] 2 QB 324: “There is … no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previous...
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This new Sixth Edition starts a second century for Black's Law Dictionary-the standard authority for legal definitions since 1891. Nearly every area of the law has undergone change and develop ment since publication of the Fifth· Edition in 1979. This period has
