THE THEORY OF THE BINDING PRECEDENT Legal English

THE THEORY OF THE BINDING PRECEDENT Legal English Academic year 2018/2019 Anna Morsut

PRECEDENT LIKE CASES BE TREATED ALIKE CIVIL LAW The right decision The logical decision COMMON LAW The previous decision (no other reasons) SECONDARY SOURCE PRIMARY SOURCE

HISTORY The precedent became binding because of three events: 1. The reorganization of the higher court system 2. Birth of a semi-official organ called Incorporated Council of Law Reporting 3. Legal positivism

REORGANIZATION OF COURT SYSTEM Judicature Acts 1873 -1875: High Court of Appeal Supreme Court This radical restructuring did much to unify the system.

INCORPORATED COUNCIL OF LAW REPORTING ICLR reports only few sentences of the higher courts, expecially: • all cases which introduce, or appear to introduce, a new principle or a new rule; • all cases which materially modify an existing principle or rule; • all cases which settle, or materially tend to settle, a question upon which the law is doubtful; • all cases which for any reason are peculiarly instructive.

LEGAL POSITIVISM Legal positivism is thesis that the existence and content of law depends on social facts and not on its merits. LAW as a SCIENCE + need for LEGAL CERTAINTY

STARE DECISIS “Stare decisis et non quieta movēre” Follow the precedent despite it is wrong or unfair There are two senses of stare decisis: - Vertical sense - Horizontal sense

VERTICAL SENSE A court is always binded to follow the precedents given by superior courts: SUPREME COURT (binds) COURT OF APPEAL (binds) HIGH COURT

HORIZONTAL SENSE A court is binded to follow them precedent decisions. HIGH COURT Since 1966: • the High Court is always binded by its precedents; • the Court of Appeal is binded, except for: • contrast with a Supreme Court decision • contrast between two decisions of the Court of Appeal • decision given with a “lacuna” (with the addition of other elements there would have been a different solution) • the Supreme Court is not binded, if deemed necessary.

WAYS IN WHICH PRECEDENTS CAN BE AVOIDED • DISTINGUISHING depart from the facts • OVERRULING depart from the law • REVERSING if the lower court wrongly interpreted the law, the higher court could reverse its decision

RATIO DECIDENDI VS OBITER DICTA RATIO DECIDENDI: the point in a case which determines the judgement or the principle which the case establishes. OBITER DICTA: things included in the court’s opinion that do not form a binding precedent, despite they can be strongly persuasive.

ADVANTAGES AND DISADVANTAGES PRO: Certainty; Uniformity in the law. CONTRA: Rigidity; Long time for cases to be decided.