Unit 5 The Doctrine of Precedent The Doctrine

Unit 5 The Doctrine of Precedent

The Doctrine of Precedent and Common Law - The doctrine of precedent = the very basis of the common law Also referred to as judge-made law = result of court rulings - Equally important as the law enacted by Parliament = result of the legislative procedure in the UK Parliament-made law - It enables more flexible reaction to certain provisions of the legislation or concrete case details, which are not covered by statutes - Also known as stare decisis = lat. „to stand by decided matter”

Definition – A precedent is. . . A) something such as a judgment which has happened earlier than the present, and which can be a guide to what should be done in the present case. A decision in court which will show other courts how to act in future. B) an example to be followed: thus, a previous decision by a superior court on similar facts; or a draft of a legal document which serves as a pattern in future. - to set / create a precedent: to make a decision in court which will show other courts how to act in future to follow a precedent: to decide in the same way as an earlier decision in the similar type of case -

Types of precedent u two types of precedent: binding precedents and persuasive Type I A binding precedent obliges a court to follow its decision This type of precedent is called a ‘mandatory precedent’ in some court systems. A binding precedent requires all inferior courts to follow the ratio decendi (reasons for deciding) of superior courts. It is also binding for the superior court itself.

Type II - a persuasive precedent can influence a decision but not compel or restrict it - Decision of a lower court - Obiter dicta – additional remarks and speculations of judges – in a decision of a higher court → provides some insight or explanation into how the judge interpreted the facts and legal principles, in order to reach his or her decision.

Precedents and creation of law ORIGINAL PRECEDENT –creates a new rule of law DECLARATORY PRECEDENT –merely applies an already existing rule of law

Distinguishing, overruling and reversing (ways of avoiding precedents) I DISTINGUISHING – a method which can be used by a judge to avoid following a past precedent – facts are sufficiently different – not bound by the previous case II OVERRULING – when a higher court decides not to follow a previous decision of a lower court because it thinks it was wrongly decided (a higher court overturns and changes a precedent) III REVERSING – a higher court overturns the DECISION of a lower court on appeal (in the same case) because it disagrees with it (and then it reverses it)

Precedents and the hierarchy of courts THE HIERARCHY OF COURTS ® the principle of law laid down by superior courts must be accepted as binding on all courts of inferior jurisdiction The rules of precedent apply only to rulings on points of law, because the facts of two cases can not be the same.

The Hierarchy of the Courts European Court of Justice Supreme Court of the UK (formerly House of Lords) Court of Appeal (Civil Division) Court of Appeal (Criminal Division) High Court Chancery Division Family Division High Court Queen’s Bench Division COURTS Crown Court County courts Magistrates’ courts CIVIL CRIMINAL JURISDICTION S U P E R I O R

Hierarchy of Civil Courts The Supreme Court of the UK – the highest court of appeal The Court of Appeal – appeals from the High court and county courts The High Court of Justice – first instance court for complex cases, defamation; second-instance court for appeals from magistrates’ courts Magistrates’ courts – first-instance court for family cases

Hierarchy of Criminal Courts The Supreme Court of the UK – the highest court of appeal The Court of Appeal – appeals from the Crown court and the Hight Court of Justice (Queen’s Bench Division) The High Court of Justice – Queen’s Bench Division – appeals from the Crown Court or magistrates’ courts Crown Court – first-instance court for serious criminal cases (indictable offences) Magistrates’ courts – first-instance court for summary offences

Advantages in applying precedents Consistency in application and predictability of court decisions Flexibility – easy adaptation to new circumstances of a case (when statutes do not provide a clear answer) Age-long recording of cases provides for a huge amount of details, circumstances, points of law, that enhance precision in the creating of law

Danger / Disadvantages in applying precedents Legalism is the result of a belief in certainty and rulefollowing, which is essential for the doctrine of precedent. If a precedent is followed too strictly there is a danger of inflexibility. Mistakes can be made even by the most distinguished judges and there should be a possibility to react appropriately in an individual case. It is good to adhere to a precedent but also to be willing to soften its application in appropriate cases.

Expressions from Unit 5 - founded on the doctrine of precedent the hierarchy of courts to be binding on all courts (of inferior jurisdiciton) to set / establish / create a precedent reasons for departing from a precedent it is a question of law / a question of facts a belief in certainty and rule-following judges make mistakes the mistakes of the past the best / possible approach to precedent to adhere to precedent the application of precedent

Match a Latin term and a definition (two definitions are too much) LATIN TERMS DEFINITIONS Ratio decidendi to stand by decided matter Stare decisis Obiter dicta saying in passing (comments, arguments) the reason for a decision reasons for not changing a ruling