doctrine of precedent

precedent

a precedent is the reasoning behind a court’s decision. It establishes a legal principle or legal rule which can be used by judges to provide guidance when deciding future cases.

reasons for precedent

• like cases are decided in a like manner

• legal representatives are able to give advice on the likely outcome of a case

• judges have guidance

• decisions made by experienced judges can be followed in lower courts

• the same point is not being decided over and over again

binding precedents

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

ratio decidendi

the legal reasoning behind a judges decision, it forms the binding part of a precedent.

stare decisis

the basic principle underlying the doctrine of precedent. Lower courts following the reasons for the decisions of higher courts

‘to stand by what has been decided’

persuasive precedents

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

obiter dictum

refers to statements or comments made by a judge that are not an actual part of the reason for the decision, but may be considered as persuasive in future cases.

developing and avoiding precedents

if not bound to follow precedent they may

• adopt the precedent

• choose not to follow it

the four other ways of treating a precedent are:

• reversing

• overruling

• distinguishing

• disapproving

reversing

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

overruling

when a superior court changes a previous precedent, established by a lower court in a different and later case, thereby creating a new precedent which overrides the earlier precedent

distinguishing

the process by which a lower court decides that the material facts of a case are sufficiently different from those of a case whose precedent was established by a superior court so that they are not bound to follow it.

disapproving

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