A) Explain what is meant by the doctrine of precedent. (11)
B) What are the advantages and disadvantages of the doctrine of
A) The doctrine of judicial precedent is at the heart of the common
law system of rights and duties. The courts are bound (within limits)
by prior decisions of superior courts. One level includes stare
decisis, this means to stand by what has been previously decided in a
previous case and that this decision should be kept to and that you
should in no way try to unsettle the established.
This can benefit the system of common law because it supports the idea
of fairness and it therefore provides certainty in the law and also
consistency in the law. Another aspect of stare decisis that concerns
the court hierarchy is that decisions that are made in the higher
court must be followed by the lower courts and the same decisions must
be followed at all time.
This leads me on to my next point about the court hierarchy. Under
stare decisis the courts must follow the judgments that were made by
their superior courts. In the civil system, this is as follows. The
main court is the European Court of Justice (ECJ). The decisions that
are made here bind all of the lower courts to it. For example a
decision that was made in the ECJ must be followed in the House of
Lords (HOL.) again the decisions that are made in the HOL must be
followed in the Court of Appeal (COA) (this is however only in the
civil division for civil cases), once again the decisions made in the
COA must be followed by all the divisional courts, and the high courts
must follow these decisions and finally the county court must follow
the high courts decisions.
Again the criminal court hierarchy is similar to the civil court, it
starts in the ECJ, and the decisions made in this court again follow
over to the HOL. These decisions follow over to the COA, and the
decisions made here follow over to the Queens Bench Divisional Court
(QBD) and these follow into the Crown court and again these follow
into the magistrate’s court.
Another part of the doctrine of precedent is obiter dicta, this means
that it is a comment made by a judge in a decision or ruling which is
not required to reach the decision, but may state a related legal
principle as the judge understands it. While it may be said in legal
argument, it does not have the full force of a precedent since the
comment was not part of the legal basis for judgment; it is just
simply trying to persuade the law to make a decision.
The other part of the doctrine of precedent is ratio decidendi. This
is the part of the judgment that is the most important for the
doctrine of precedent. The ratio decidendi means the reason for
deciding. Ratio is the main facts of how the judgement is decided.