Unit 5

1. Unit 5 The Doctrine of Precedent

2. 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”

3. Definition – A precedentis... • 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. • an example to be followed: thus, a previous decisionby 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

4. Typesofprecedent two types of precedent: binding precedents and persuasive Type I Abinding 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. Itisalsobinding for thesuperiorcourtitself.

5. Type II - a persuasive precedent can influence a decision but not compel or restrict it - Decisionof a lowercourt • Obiterdicta – additionalremarksandspeculationsofjudges – in a decisionof a highercourt →provides some insight or explanation into how the judge interpreted the facts and legal principles, in order to reach his or her decision.

6. Precedentsandcreationoflaw • ORIGINAL PRECEDENT –creates a newruleoflaw • DECLARATORY PRECEDENT –merelyappliesanalreadyexistingruleoflaw

7. 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 aprevious decision of a lower courtbecause it thinks it was wrongly decided(a higher courtoverturns and changes a precedent) III REVERSING – a higher court overturns the DECISION of a lower courton appeal (inthe same case) because it disagrees with it(and then it reverses it)

8. 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.

9. The Hierarchy of the Courts European Court of Justice Supreme Court of the UK(formerlyHouseofLords) Court of Appeal (Civil Division) Court of Appeal (Criminal Division) High Court ChanceryDivision FamilyDivision High Court Queen’s Bench Division Crown Court County courts Magistrates’ courts S U P E R I O R COURTS CIVILCRIMINAL JURISDICTION

10. 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 courtfor complexcases, defamation; second-instance court for appeals from magistrates’ courts Magistrates’ courts – first-instance court for family cases

11. 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

12. Advantages in applying precedents • Consistency in application and predictability ofcourtdecisions • Flexibility – easy adaptation to newcircumstancesof a case (when statutes do not provide a clearanswer) • Age-long recording of cases provides for a huge amount of details, circumstances, points of law, that enhance precision in the creating of law

13. 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.

14. 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

15. Match a Latin term and a definition(two definitionsare too much)