5: THE DOCTRINE OF JUDICIAL PRECEDENT
LEARNING OBJECTIVES
• understand what is meant by the doctrine of judicial precedent and why it is
important in the common law
• recognize and distinguish between ratio decidendi and obiter dicta
• explain the extent to which judges can make law within the system of
precedent.
WHAT IS JUDICIAL PRECEDENT, AND WHY IS IT IMPORTANT?
MODULE GUIDE
o Refers to when a judge deciding a case looks for a precedent, or a decision in
an early similar case to help reach a solution in the new case.
o This contributes to doing justice consistency, certainty and predictability.
o Similar cases are treated in the same way, promoting certainty and justice.
o This is also known as the doctrine of judicial consistency.
BINDING PRECEDENT
o Binding precedent refers to where the courts are bound to follow earlier
decisions even though the second court judge may not approve of the
precedent.
o This rule is known as stare decisis, which translates to “stand by decisions
already made”.
o The idea of this is to ensure fairness through consistency and to provide
predictability in the law and reduce litigation.
o There would be no need to litigate the case if people knew what the law is
through the precedent.
o This precedent will be followed until either:
1. Another court decided it was incorrect.
2. Cannot be allowed to stand,
3. Higher court in the hierarchy overturns the decision,
4. Parliament changes the Law and thereby overrules the rule laid by
court.
o Even though it promotes certainty and fairness, there is a risk of adhering too
rigidly to the precedent that can potentially lead to rigidity in the law.
o The English common law approach to precedent aims to provide balance
between predictability and flexibility.
, o The supreme court stated that more senior cases’ decisions have to be
accepted by more junior courts, otherwise, the law becomes anarchic and
loses coherence, clarity and predictability.
o It is a limitation that the judiciary has imposed on themselves.
o It is not a rule of Parliament but a judicial discipline, and if the judiciary were
to agree on a change, they would be free to do so.
o In 1966, the judges in the HOL decided to change their practice by agreeing
that in the future, in appropriate cases, they would be prepared to overrule
an earlier decision.
PERSUASIVE PRECEDENT
o Persuasive precedent refers to where the decisions are not binding but the
judges will still follow.
o They feel they are under some obligation to explain why they would not be
following a certain persuasive precedent.
o There are some examples:
Ratio of the Judicial Committee of the Privy Council, Ratio of the superior
courts of other common law jurisdictions, Decisions of High Court judges.
o Vertical precedent refers to the extent to which a lower court in the hierarchy
is bound to follow a decision of a higher court in the hierarchy.
o Horizontal precedent refers to the extent to which a court at the same level
is bound to follow its own earlier decisions.
HOLLAND AND WEBB
o Decisions of lower courts
o Decisions of High court at first instance
o Decision of the Judicial Committee of the Privy Council
o Decisions of the Scottish and Northern Irish Courts
o Decisions of other courts within common law world
RATIO DECIDENDI AND OBITER DICTA
MODULE GUIDE
o Ratio decidendi is what constitutes the precedent.
o Other parts of the judgement, or things said by the way that are not essential
for the decision are referred to as obiter dicta.
o Ratio decidendi is essentially the legal rule that leads to the decision.
o According to Sir Rupert Cross: The ratio decidendi is expressly or impliedly
treated by the judge as a necessary step in reaching his conclusion.
LEARNING OBJECTIVES
• understand what is meant by the doctrine of judicial precedent and why it is
important in the common law
• recognize and distinguish between ratio decidendi and obiter dicta
• explain the extent to which judges can make law within the system of
precedent.
WHAT IS JUDICIAL PRECEDENT, AND WHY IS IT IMPORTANT?
MODULE GUIDE
o Refers to when a judge deciding a case looks for a precedent, or a decision in
an early similar case to help reach a solution in the new case.
o This contributes to doing justice consistency, certainty and predictability.
o Similar cases are treated in the same way, promoting certainty and justice.
o This is also known as the doctrine of judicial consistency.
BINDING PRECEDENT
o Binding precedent refers to where the courts are bound to follow earlier
decisions even though the second court judge may not approve of the
precedent.
o This rule is known as stare decisis, which translates to “stand by decisions
already made”.
o The idea of this is to ensure fairness through consistency and to provide
predictability in the law and reduce litigation.
o There would be no need to litigate the case if people knew what the law is
through the precedent.
o This precedent will be followed until either:
1. Another court decided it was incorrect.
2. Cannot be allowed to stand,
3. Higher court in the hierarchy overturns the decision,
4. Parliament changes the Law and thereby overrules the rule laid by
court.
o Even though it promotes certainty and fairness, there is a risk of adhering too
rigidly to the precedent that can potentially lead to rigidity in the law.
o The English common law approach to precedent aims to provide balance
between predictability and flexibility.
, o The supreme court stated that more senior cases’ decisions have to be
accepted by more junior courts, otherwise, the law becomes anarchic and
loses coherence, clarity and predictability.
o It is a limitation that the judiciary has imposed on themselves.
o It is not a rule of Parliament but a judicial discipline, and if the judiciary were
to agree on a change, they would be free to do so.
o In 1966, the judges in the HOL decided to change their practice by agreeing
that in the future, in appropriate cases, they would be prepared to overrule
an earlier decision.
PERSUASIVE PRECEDENT
o Persuasive precedent refers to where the decisions are not binding but the
judges will still follow.
o They feel they are under some obligation to explain why they would not be
following a certain persuasive precedent.
o There are some examples:
Ratio of the Judicial Committee of the Privy Council, Ratio of the superior
courts of other common law jurisdictions, Decisions of High Court judges.
o Vertical precedent refers to the extent to which a lower court in the hierarchy
is bound to follow a decision of a higher court in the hierarchy.
o Horizontal precedent refers to the extent to which a court at the same level
is bound to follow its own earlier decisions.
HOLLAND AND WEBB
o Decisions of lower courts
o Decisions of High court at first instance
o Decision of the Judicial Committee of the Privy Council
o Decisions of the Scottish and Northern Irish Courts
o Decisions of other courts within common law world
RATIO DECIDENDI AND OBITER DICTA
MODULE GUIDE
o Ratio decidendi is what constitutes the precedent.
o Other parts of the judgement, or things said by the way that are not essential
for the decision are referred to as obiter dicta.
o Ratio decidendi is essentially the legal rule that leads to the decision.
o According to Sir Rupert Cross: The ratio decidendi is expressly or impliedly
treated by the judge as a necessary step in reaching his conclusion.
