Unit 5

The Doctrine
of Precedent
 The Doctrine of Precedent and Common
Law
- The doctrine of precedent = the very basis of the
common law
- Also referred to as judge-made law = result of court
rulings
- Equally important as the law enacted by
Parliament = result of the legislative procedure in
the UK Parliament-made law
- It enables more flexible reaction to certain
provisions of the legislation or concrete case details,
which are not covered by statutes
- Also known as stare decisis = lat. „to stand by
decided matter”
 Definition – A precedent is...
A) something such as a judgment which has
happened earlier than the present, and
which can be a guide to what should be done in the
present case. A decision in court which will show
other courts how to act in future.

B) an example to be followed: thus, a previous decision

by a superior court on similar facts; or a draft of a
legal document which serves as a pattern in future.

- to set / create a precedent: to make a decision in

court which will show other courts how to act in
future
- to follow a precedent: to decide in the same way
as an earlier decision in the similar type of case
 Types of precedent
 two types of precedent: binding precedents and
persuasive

Type I
A binding precedent obliges a court to follow its
decision

This type of precedent is called a ‘mandatory

precedent’ in some court systems. A binding
precedent requires all inferior courts to follow the
ratio decendi (reasons for deciding) of superior
courts. It is also binding for the superior court itself.
Type II
- a persuasive precedent can influence a decision
but not compel or restrict it
- Decision of a lower court
- Obiter dicta – additional remarks and
speculations of judges – in a decision of a higher
court

→ provides some insight or explanation into how

the judge interpreted the facts and legal principles,
in order to reach his or her decision.
 Precedents and creation of law

 ORIGINAL PRECEDENT –creates a new rule of law

 DECLARATORY PRECEDENT –merely applies an

already existing rule of law
 Distinguishing, overruling and reversing
(ways of avoiding precedents)

I DISTINGUISHING – a method which can be used by a judge

to avoid following a past precedent – facts are sufficiently
different – not bound by the previous case

II OVERRULING – when a higher court decides not to follow a

previous decision of a lower court because it thinks it was
wrongly decided (a higher court overturns and changes a
precedent)

III REVERSING – a higher court overturns the DECISION of a

lower court on appeal (in the same case) because it
disagrees with it (and then it reverses it)
Precedents and the hierarchy of courts

THE HIERARCHY OF COURTS

 the principle of law laid down by superior
courts must be accepted as binding on all
courts of inferior jurisdiction

The rules of precedent apply only to rulings

on points of law, because the facts of two
cases can not be the same.
 The Hierarchy of the Courts
European Court of Justice

Supreme Court of the UK S

(formerly House of Lords)
U
P
Court of Appeal Court of Appeal E
(Civil Division) (Criminal Division)
R
I
High Court High Court O
Chancery Division
Family Division
Queen’s Bench Division R
COURTS

Crown Court

County courts Magistrates’

courts
CIVIL CRIMINAL
JURISDICTION
 Hierarchy of Civil Courts
The Supreme Court of the UK – the highest court of
appeal
The Court of Appeal – appeals from the High court and
county courts
The High Court of Justice – first instance court for
complex cases, defamation;
second-instance court for appeals
from magistrates’ courts
Magistrates’ courts – first-instance court for family
cases
 Hierarchy of Criminal Courts
The Supreme Court of the UK – the highest court of appeal
The Court of Appeal – appeals from the Crown
court and the Hight Court
of Justice (Queen’s Bench
Division)
The High Court of Justice – Queen’s Bench Division – appeals
from the Crown Court or
magistrates’ courts
Crown Court – first-instance court for serious criminal cases
(indictable offences)
Magistrates’ courts – first-instance court for summary offences
 Advantages in applying precedents

 Consistency in application and predictability of

court decisions
 Flexibility – easy adaptation to new
circumstances of a case (when statutes do not
provide a clear answer)
 Age-long recording of cases provides for a huge
amount of details, circumstances, points of law,
that enhance precision in the creating of law
 Danger / Disadvantages in applying
precedents
Legalism is the result of a belief in certainty and rule-
following, which is essential for the doctrine of
precedent.

If a precedent is followed too strictly there is a danger

of inflexibility. Mistakes can be made even by the
most distinguished judges and there should be a
possibility to react appropriately in an individual case.

It is good to adhere to a precedent but also to be willing

to soften its application in appropriate cases.
 Expressions from Unit 5
- founded on the doctrine of precedent
- the hierarchy of courts
- to be binding on all courts (of inferior jurisdiciton)
- to set / establish / create a precedent
- reasons for departing from a precedent
- it is a question of law / a question of facts
- a belief in certainty and rule-following
- judges make mistakes
- the mistakes of the past
- the best / possible approach to precedent
- to adhere to precedent
- the application of precedent
 Match a Latin term and a definition
(two definitions are too much)

LATIN TERMS DEFINITIONS

Ratio decidendi to stand by decided matter

saying in passing (comments, arguments)

Stare decisis
the reason for a decision
Obiter dicta
reasons for not changing a ruling