This essay can be helpful for your CIE A levels, AS level, exams or even first year law degree. All my essays have been marked by my lecturer and given good grades! This essay was awarded top in the class marks (English legal system)
2 types of common questions in exam:
- Just asking for Adv/disadv of judicial precedent, no need to do judicial tools
- Does precedent make it difficult for changing law/ make the English legal system rigid/ law
stand still?
Judicial Precedent
Stare decisis means ‘let the decision stand’ which is the basis of judicial precedent. It states
that once a decision has been made on how the law applies to a particular set of facts, similar
facts in later cases should be treated in the same way.
There are two types of precedent: binding precedent and persuasive precedents
Ratio Decidendi is the legal principles set out by a judgement that are used to reach a decision
in a previous case. The decisions made by higher courts are then a binding precedent for
lower courts. In Donoghue v Stevenson, the claimant sued the manufacturer after discovering
remnants of a dead snail upon consumption of ginger-beer. The judge held that the defendant
was negligent and liable, contradicting the common law that claimants cannot sue in the
presence of a contract. This formed the Neighborhood Principle which is the basis of tort law.
Courts have the discretion whether to follow precedent or not, this is persuasive precedent.
Obiter Dicta means ‘things said by the way’ and how stare decisis works. In Central London
property trust Ltd v High Trees house Ltd, Lord Denning decided that the landlord was
entitled to collect full rent after the war ended since the binding promise only applied during the
war. The lower courts decisions can also form persuasive precedents. This can be seen in
R v R where the Court of Appeal aquitted a man for raping his wife, who was living with her
parents. When the defendant appealed to the House of Lords, the House of Lords followed the
decision of the Court of Appeal.
Law Reporting is an accurate record of the law that allows judges to identify the presence of
binding precedents. The Incorporated Council of Law Reporting was set up in 1865 with
records going back to around 1275.
The UK courts, Civil and Criminal divisions, are bound to follow any decision made by courts
above it in the hierarchy. Lower courts must follow the precedent of the higher courts. The
Hierarchy of the courts is shown below.
*Hierarchy of the main civil courts *Hierarchy of the criminal courts
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