Judicial Law-Making

What is Judicial Precedent?

a decision of the court used as a source for future decision making

What is the doctrine of precedent?

It is a principle that requires judges to follow the rulings and determinations of judges in higher courts, where a case involves similar facts and issues.

stare decisis" - meaning "stand by what has been decided."

What do "ratio decidendi" and "obiter dicta" mean?

Ratio decidendi ✨: The legal reason for the judge's decision — this part is binding on future cases.

Example: Donoghue v Stevenson (1932) - Ratio = a duty of care exists in negligence.

Obiter dicta: Other comments the judge made — not binding, but persuasive.

How does court hierarchy affect judicial precedent?

Supreme Court: Highest court - binds all lower courts ✨

Court of Appeal (Civil & Criminal): Binds lower courts, usually binds itself

High Court: Can set precedent for lower courts but not bind other High Court judges

Lower courts: Must follow decisions from higher courts

What's the difference between binding and persuasive precedent?

Binding precedent ✨: From a higher court, must be followed.

Persuasive precedent: Not binding but can influence.

What tools do judges have to avoid following precedent?

Distinguishing ✨ - showing the facts are materially different

Case: Balfour v Balfour vs Merritt v Merritt (contracts between spouses)

Overruling - higher court changes the law made in a previous case

Case: Pepper v Hart overruled Davis v Johnson

Reversing - same case, appeal court reverses decision of lower court

E.g. Crown Court → Court of Appeal → reversed by Supreme Court

What is the Practice Statement?

allowed the House of Lords (now Supreme Court) to depart from its own previous decisions when "right to do so." it gives flexibility to correct past errors.

📌 Case: R v Shivpuri (1986) overruled Anderton v Ryan (1985) on criminal attempts.

What are law reports and why are they important?

Law reports record key decisions of judges, including ratio and obiter. They ensure consistency, accuracy, and allow for precedent to be followed.

Advantages of Judicial Precedent

Consistency & fairness ✨: Similar cases treated alike

Flexibility: Can develop law using distinguishing, overruling

Time-saving: Decisions already made = efficiency

Real-life context: Based on actual cases and facts

Disadvantages of Judicial Precedent

Rigidity ✨: Lower courts must follow even if outdated

Complexity: Many cases; hard to find ratio

Illogical distinctions: Too much use of distinguishing

Slowness in growth: Law changes only if cases reach higher courts