Judicial Precedent in the United Kingdom
University of London
Common Law Reasoning and Institutions
Essay Title: ‘Judicial precedent is best understood as a practice of the courts and not as a set of binding rules. As a practice it could be refined or changed by the courts as they wish.’ Discuss
Judicial precedent is a judgment or decision of a court which is used as an authority for reaching the same decision in subsequent cases. In English law, judgment and decisions can represent authoritative precedent (which is generally binding and must be followed) or persuasive precedent (which need not be followed). It is part of the judgment that represents the legal reasoning or ratio decidendi of a case that is binding, but only if the legal reasoning is from a superior court, and in general, from the same court in an earlier case. Accordingly, ratio decidendis of the House of Lords are binding upon the Court of Appeal and all lower courts and are normally followed by the House of Lords itself.
The doctrine of judicial Precedent did not become fully established until the second half of the nineteenth century. Until 1898 the House of Lords had the power to overrule it’s own previous decisions. One important and distinctive element of the English law is that the reasoning and decisions found in preceding cases were not simply considered as a guide. They could be considered binding on later courts. This is known as stare decisis (let the decision stand). This means that when a court makes a decision in a case, then any court, which is of equal or lower status to that court, must follow the previous decision if the case before them is similar to that of the earlier case. Thus, once a court as decided on a matter other inferior courts are bound to follow the decision. Once a point of law has been decided in a particular case, that law must applied in all future cases containing the same material facts. For example, in the case of Donughue v Stevenson (1932)
Common Law Reasoning and Institutions
Essay Title: ‘Judicial precedent is best understood as a practice of the courts and not as a set of binding rules. As a practice it could be refined or changed by the courts as they wish.’ Discuss
Judicial precedent is a judgment or decision of a court which is used as an authority for reaching the same decision in subsequent cases. In English law, judgment and decisions can represent authoritative precedent (which is generally binding and must be followed) or persuasive precedent (which need not be followed). It is part of the judgment that represents the legal reasoning or ratio decidendi of a case that is binding, but only if the legal reasoning is from a superior court, and in general, from the same court in an earlier case. Accordingly, ratio decidendis of the House of Lords are binding upon the Court of Appeal and all lower courts and are normally followed by the House of Lords itself.
The doctrine of judicial Precedent did not become fully established until the second half of the nineteenth century. Until 1898 the House of Lords had the power to overrule it’s own previous decisions. One important and distinctive element of the English law is that the reasoning and decisions found in preceding cases were not simply considered as a guide. They could be considered binding on later courts. This is known as stare decisis (let the decision stand). This means that when a court makes a decision in a case, then any court, which is of equal or lower status to that court, must follow the previous decision if the case before them is similar to that of the earlier case. Thus, once a court as decided on a matter other inferior courts are bound to follow the decision. Once a point of law has been decided in a particular case, that law must applied in all future cases containing the same material facts. For example, in the case of Donughue v Stevenson (1932)
Bibliography: Elliot, Catherine, Quinn Frances. English Legal System. London: Pearson Education Limited. 2010. Geary, Adam, Morrison, Wayne, Jago, Robert. The Politics of the Common Law: Perspective, Rights, Processes, Institutions. London: Routledge-Cavendish. 2009. Holland, James, Webb, Julian. Learning Legal Rules. Oxford: Oxford University Press. 2010. Martin, Elizabeth A., Law, Jonathan (eds.). A Dictionary of Law. Oxford: Oxford University Press. 2006. Slapper, Gary, Kelly, David. Q&A English Legal System 2007-2008. London: Routledge-Cavendish. 2007 Sixth Form Law, ‘Mechanics of Precedents - The Denning Story’ http://sixthformlaw.info/01_modules/mod2/2_1_1_precedent_mechanics/09_precedent_denning.htm accessed April 24, 2011 Smith, Rowan, ‘The Doctrine of Judicial Precedent (Case Law)’ http://learningat.ke7.org.uk/socialsciences/5thlesson/Law/The%20Doctrine%20of%20Judicial%20Precedent%20-student.htm accessed April 21, 2011