12.3 Features of the Doctrine of Precedent

material facts

the key facts or details in a legal case that were critical to the courts’ decision

binding precedent

legal reasoning for a decision of a higher court that must be followed by a lower court in the same jurisdiction is cases with similar material facts

court judgement

a statement by the judge that outlines the decision of the court and the legal reasoning behind the decision

ratio decidendi

‘the reason’ the legal meaning behind a judge’s decision, forms the binding part of a precedent

stare decisis

‘let the decision stand’ the basic principle underlying the doctrine of precedent

persuasive precedent

legal reasoning behind a decision in a lower (or equal) court, within the same jurisdiction or a court in another jurisdiction that may be considered relevant even though it is not binding

obiter dictum

‘by the way’ comments made by the judge in a case that may be persuasive in future cases

reversing a precedent

when a superior court changes a previous precedent set by a lower court in the same case on appeal, thereby creating a new precedent which overrides the earlier precedent

overruling a precedent

when a superior court changes a previous precedent, established by a lower court, in a later case, creating a new precedent which overrules the earlier precedent

distinguishing a precedent

the process by which a lower court decided that the material facts of a case are sufficently different from those in a case in which a precedent was established by a superior court so that they are not bound to follow it

disapproving a precedent

when a court expresses dissatisfaction with an existing precedent but is still bound to follow it

role of superior courts with precedents

set precedents and make laws

purpose of the application of precedents

helps ensure common law is consistent and predictable

Persuasive precents may be

• set by courts in another court hierarchy

• set by lower courts in the same hierarchy

• set by courts of the same standing

• statements made as obiter dicta contained in a judgement

Key Features of the Doctrine of Precedent

• binding

  • superior court decsions on lower courts

  • similar material facts

  • decision of superior court remains law until overruled by a higher court

• persuasive

  • precedents from another hierarchy

  • obiter dictum

• can be developed or avoided through reversing, distinguishing, overruling, disapproving

if a judge is not bound to follow earlier precedents they may

• adapt the precedent

• choose not to follow the existing precedent