The doctrine of precedent is the approach of the court in the context of previous court decisions. It is an important doctrine originating from the Latin maxim ‘stare decisis et non quieta movere’which means: ‘stand by what has been decided and do not unsettle the established’.
At the conclusion of a case, the judge must give the court’s ruling, or ‘judgment’, which is the court’s review and explanation of the facts of the case, the legal issues, the arguments in the case, the court’s decision and – importantly – how it reached its decision. Court rulings comprise two main elements: the ratio dicidendi and obiter dicta.
The ratio dicidendiis the court’s reasons, or rationale, for its decision in a case. It is the ratio that subsequent courts should follow in future cases with the same or similar facts and legal issues. However, the ratio of a ruling can then lead to future cases having to determine the breadth of that ratio – reflecting the fact that every case is unique.
The obiter dicta are comments, guidance and other observations made by judges when they give their rulings. The courts are not bound to follow comments made obiter in earlier rulings, but they are very useful when judges are considering cases.
The doctrine of precedent dictates that a court must follow decisions of previous decisions of the same or higher court in cases that are similar in relation to the facts and the legal issues. There are three types of precedent:
Where the court hears a case that involves, for instance, a law and/or a set of facts that have never come before the courts, then the outcome will create an ‘original precedent’that future judges will follow. When considering the case, the court will consider previous cases that may have similarities, as they can provide a helpful guide to the approach it should take in this case in reaching its decision.
Binding precedents arise from important previous cases, and bind future judges who must follow the precedent – even if they do not agree. However, binding precedent will only apply where the facts of the original case are sufficiently similar to those that appear in new cases, and the decision was made by a court that is higher that the court currently deciding upon the issue.
However, a binding precedent can be overturned or departed from, for instance, if there is a change in law or even in societal norms, that means the previous ruling is no longer good law. Only a higher court can depart from a binding precedent.
These are previous decisions of the court which, though not binding on the court in subsequent cases, may influence a judge’s decision if the legal principles and reasoning given in the previous decision is relevant to the present case. In this instance, the previous decision is a persuasive precedent. Persuasive precedent may be found in:
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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