JUDICIAL PRECEDENT

Judicial precedent is one of the sources of law, particularly English Common Law which, it self, is the basis of legal systems in many parts of the world (e.g. the USA and Commonwealth countries).

Essential to the common law is the hierarchy of the courts and the principle of binding precedent. In practice, this means that the decision of a higher court is binding on a lower court, and in the course of a trial the judges must refer to existing precedents. This is known as stare decisis ‘ stand by what has been decided’. The judges will also consider decisions made by a lower court, although they are not bound to follow them. However, a rule set by a court of greater or equal status must be applied if it is relevant.

During a trial, a counsel will cite cases and either attempt to distinguish the case at trial from those referred to, or alternatively, argue that the rule established in a previous case is applicable and should be followed. At the end of each legal case the Judge gives a summary of the facts of the case; then a review of the arguments (defence and prosecution) and an explanation of the principles of law he/she is using to come to a decision. Only the legal principles used to come to a decision are referred to as the ratio – decidendi’ which means ‘the reason for deciding’. Sometimes the Judge will consider what his/her decision would have been if the facts of the case had been different; this hypothetical situation is referred to as the ’obiter dicta’ (i.e. other things said) and the legal reasoning put forward may be used in future cases.

The great body of legal precedent contained in law books is the result of appeals to higher courts against the decisions of lower courts. The appeals have resulted in the clarification of specific principles, either by improving them or by overturning the original court's decision through the introduction of a new precedent.

So, put in broad terms, judicial precedent is the body of legal principles established by past court decisions which have survived the process of appeal to higher courts and have consequently become binding on all courts.

II. DEVELOPMENT

3. Answer the following questions using the information from the text:

1) What are the distinctive features of common law?

2) What does the principle of binding precedent mean?

3) Should rules set by courts of equal status be applied if they are relevant?

4) What is the role of the judge at the end of the case?

5) How would you define the ’obiter dicta’?

6) What are the results of appeals to higher courts against the decisions of lower courts?

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