Know how legal rules are created by precedent
Judicial precedent: development of the system; law reporting; binding authorities; persuasive authorities; ratio decidendi; obiter statements
Avoiding judicial precedents: distinguishing previous decisions; reversing decisions; overruling previous decis...
P3 describe how legal rules are created by precedent
Judicial precedent:
Development of the system;
The decisions made by judges create new laws for the future judges to follow.
Decisions that are made in certain cases are binding on the future judges
when the facts of the case are identical. This is known as the judicial
precedent. This is one of the most important parts of common law.
Law reporting;
Law reports are books that contain judicial decisions are opinions from
different types of cases that have been picked by the courts. This will then
provide work of reference for lawyers and judges who are looking to find a
precedent for their case.
Binding authorities;
Binding authority is a matter pf precedent that all lower courts must abide
by.
Persuasive authorities;
Persuasive authority is a matter of precedent which is legally binding.
Although the court is likely to take this information into account it’s not
necessarily bound to follow it.
Ratio decidendi (reason);
This is a Latin phrase which means the reason for the decision. It’s used in
the legal profession which means legal, moral and social principles a court
with is used to make a particular decision in a court case. It is normally
binding on lower courts.
Obiter statements
This is also a Latin phrase used in the legal profession which is used to mean
comments by a judge about a case that do not form a part of the rationale,
they aren’t legally binding on the court below but they could be seen as
persuasive authority.
Avoiding judicial precedents:
Distinguishing previous decisions;
This is when the facts of previous cases are almost identical but not exactly
identical and the judges therefore believe it’s an unjust decision by following
it so he will avoid the precedent by distinguishing facts from the previous
case.
Reversing decisions;
If the decision made by a lower court is then appealed to a higher court, the
higher court may reverse a decision if they think that the lower courts have
misinterpreted the law. The higher court will then substitute its original
decision for the new one.
Overruling previous decisions;
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