THE DOCTRINE OF

PRECEDENT

PRECEDENT
A previous decision made by a superior court on similar
facts - it requires that in certain circumstances a
decision made on a legal point made in an earlier case
must be followed
The doctrine of precedent (stare decisis)
The hierarchy of courts

THE DOCTRINE OF
PRECEDENT
Stare decisis
The doctrine of judicial precedent is based on stare decisis.
That is the standing by of previous decisions. Once a point
of law has been decided in a particular case, that law must
be applied in all future cases containing the same material
facts.
The doctrine is:
All courts are bound to follow decisions made by courts above
them;
Appellate courts are normally bound by their own past
decisions

THE DOCTRINE OF
PRECEDENT CONT.
The doctrine works by requiring judges to follow the
decisions made in previous cases, thus ensuring that
there is a consistency in the law and that people
coming to the law will be able to make an educated
guess as to the potential success and likely outcome of
their case

THE HIERARCHY OF
COURTS
When a point of European Law is involved, the
decisions of the European Court of Justice are
binding on all courts in England and Wales
The House of Lords used to be the highest court
in England and Wales; now it is the Supreme
Court of the UK
Hierarchy:
The Supreme Court
Court of Appeal
Divisional Courts (High Court)
Inferior courts: Crown Court, Magistrates Court, County
Court, Tribunals

ECJ
European Court of Justice
The European Court of Justice does not recognise the
doctrine of precedent and is free to depart from its own
previous decisions. Decisions from the ECJ are binding
on all courts in England & Wales.

TYPES OF PRECEDENTS
Original
Declaratory
Binding
Persuasive

ORIGINAL PRECEDENT
Where there is no previous decision on a point of law that
has to be decided by a court, then the decision made in that
case on that point of law is an original precedent
When the court has to form an original precedent, the court
will reason by analogy (considering the cases that are
nearest to it in principle)

DECLARATORY PRECEDENT
The judges in the case merely declared what the law has
always been
Declaratory theory of law making
According to William Blackstone judges do not create or
change laws. They simply discover and declare what the law
has always been. This means that case law operates
retrospectively since the law as declared has always existed.

BINDING PRECEDENT
A past decision is binding if:
The legal point involved is the same as the legal point in the
case now being decided
The earlier decision was made by a court above the present
court in the hierarchy, or a court at the same level which is
bound by its own past judgments
The point was argued in the case

PERSUASIVE PRECEDENT
The one which the court will consider and may be persuaded
by, but which does not have to be followed, such as obiter
dicta, a dissenting judgment or ratios from decisions by
courts lower in hierarchy

LAW REPORTS
The reasons for decisions of past cases must be properly
recorded in order for a system of precedent to operate
effectively
From 1537 to 1863 various private law reports were used
Since 1863 the Incorporated Council of Law Reporting has
produced the official law reports
Judgments of superior courts are available on their official
sites on the Internet

RATIO DECIDENDI
In order for the doctrine of judicial precedent to work, it is
necessary to be able to determine what a point of law is. In the
course of delivering a judgment, the judge will set out their
reasons for reaching a decision. The reasons which are necessary
for them to reach their decision amount to the ratio decidendi of
the case. The ratio decidendi forms the legal principle which is a
binding precedent meaning it must be followed in future cases
containing the same material facts.
Ratio decidendi - the reason for the decision
The principles of law that are essential to the decision
Defined as any rule expressly or impliedly treated by the judge
as a necessary step in reaching his conclusion.

OBITER DICTA
Statements in passing (things said by the way)
Statements of principles of law that are not relevant to the
decision
Can be persuasive

AVOIDING PRECEDENT
Judges may avoid following a previous precedent by:
Overruling
Reversing
Distinguishing

Overruling
This is where a court higher in the hierarchy departs
from a decision made in a lower court. The previous
decision is no longer binding.
Reversing
This is where a higher court departs from the decision of
the lower court on appeal.
Distinguishing
This is where the facts of the case are deemed
sufficiently different so that the previous case is no
longer binding.

ARGUMENTS FOR THE

DOCTRINE
Time saving
Certainty
Justice
Consistency
Flexibility

ARGUMENTS AGAINST
THE DOCTRINE
Promotes laziness
Stagnation
Backwards looking
Difficult to remedy mistakes

VOCABULARY
Binding precedent obvezujui presedan
Persuasive precedent preporuljivi presedan
Precedent law pravo rijeenih sluajeva
Divisional courts sudski odjeli Visokog suda
Law Reports zbirka sudskih odluka
Dissenting judgment sudska odluka uz izdvojeno
miljenje
Ratio decidendi razlog za donoenje odluke
Obiter dicta usputne primjedbe

THANK YOU FOR

YOUR ATTENTION!