Judcial Precedent

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Author:
JC116
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3399
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Judcial Precedent
Updated:
2009-12-21 13:32:38
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Sources of Law
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Description:
The Doctrine of Precedent
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  1. What is Judicial Precedent?
    This refers to the source of law concerning earlier judiciary decisions as examples instructed to be follow and adhered to by present and future court cases
  2. Advantages of using Precedent
    • * Fairness - Each case is treated with the same legal facts this prevents wild variation between similar cases
    • *Consistenecy - Consistency between cases means, there can be some prediction of the result. It also strenghtens the legal system
    • * Time-saving - As similar case have been dealt with and arguements have been analysed and decided upon in the past
  3. Disadvantages of Judicial Precedent
    • * Inflexibility - Instead of looking at each case afresh, previous case have to be used. This prevents the development of the Law as soceity does.
    • * There is a dispute of whether previous case decisions can apply to present situation.
    • * Vast number of cases to choose from leading to consumption of time.
  4. Case 1: Donoghue V Stevenson (1932)
    Case 2: Daniels V White (1938)
    Two friends enter a cafe, one orders ginger beer. After pouring the last remain, out came out a decomposed snail. The women sued the manufacturer and unsurprisingly won the case.

    The claiment bought a bottle of lemonaide and when she drank it, she felt a burning sensation in her throat. The bottle was examined and was found to contain a corrosive chemical.


    These two cases are example of Judicial Precedent, though the cases were infact slightly different, they contained similar situations.
  5. Stare Decisis
    This is the basis of Judicial Precedent. Its a latin pharse which means, to stand by what has been ruled and do not unsettle what is established
  6. Obiter Dicta
    Means other things said. It refers to any part of the Judges speech that doesn't form a "binding Precedent", that is anything which other judges don't have to necessarily have to follow
  7. Ratio Decindi
    This is a part in which the judge presents the legal principles behind his/her decision and why he has come to that decision.
  8. The hierarchy of the Court
    Higher Courts take priority on lower courts. Clearly the court system has a hierarchy, it has structures of power from top to bottom. Higher courts such as The Supreme Court, formally The House Of Lords can tell lower courts what to do concerning English law
  9. The ECJ (European Court of Justice)
    The court which ensurers that the Law of the European Union is observed and applied uniformaly throughout its member states. The court sits in Luxemborg and has 15 judges, one from each member states. It is the highest court that can be refered to, once a case has come to the Supreme Court
  10. What is Binding Precedent?
    To bind or binding is an obligation where the legal reasoning of a case are to be applied, even if the judge may disagree with the legal points of law
  11. What is persuasive Precedent?
    Legal points in a case which judges may use, but it not binding and doesn't have to be followed . However, the judge may be "persuaded" to follow a legal reasoning die to the similarities of the copared cases.
  12. What is overruling?
    Involves a higher court creating a different as to one created earlier by an inferior court. The higher court have authority to reject previous decisions and reject them.
  13. What is reversing?
    When an appeal court overrules the decision made by a lower court, this is known as reversing. The appeal court goes against the findings of the previous case
  14. What is distinguishing ?
    A judge who wants to aviod following a past decision set by an earlier case can try to argue that the facts of the compared case are significantly different. If this is sucessful earlier case will not apply for that particular case.
  15. Original Precedent?
    Where there is no simialr lAw, to the one being viewed. The judges will create a new binding Precedent. This is original Precedent.
  16. The Practice Statement (1966)
    Allows more flexibility in the judicial system, it allows the H of L now know as Supreme Court to now follow its past decisions

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