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Foundations Of Law Part B Notes

Michelle Huang

Precedent
Principle or rule established in a previous legal case that is either
bounding on or persuasive for a court when deciding subsequent cases
with similar issues or facts
Goal is to yield similar and predictable outcomes
Stare decisis legal principle by which judges are obliged to respect
the precedent established by prior decisions
o Stare decisis et non quieta movere to stand by decisions and not
disturb the undisturbed (settled matters)
Hierarchies
Courts bound to follow decisions of higher courts in same hierarchy
Decisions of lower courts, or courts in other hierarchies are persuasive
Superior courts either bound by own prior decisions, or reluctant to
depart from them
Ratio decidendi the rule or principle relied on to decide any issue that
is necessary to the courts decision (binding)
Obiter dicta any proposition of law, however fully considered, that was
not the basis of the decision
When precedents does not apply
Distinguishing on facts
Statement of law too wide
Statement of law in previous case obiter
Precedent too old
Precedent unsatisfactory
Precedent wrongly decided
Advantages

Series of decisions dealing with the same general topic has the effect
of creating a firm legal framework

More flexible
o
When interpreting a case, it is usually possible to state the rule
for which it is authority in a number of different ways
o
Though courts, law can adapt to the change needs of society
o
Established legal principles can be changed over time

Promotes certainty lower courts


o
Stare decisis promotes certainty because the law is then able to
furnish a clear guide for the conduct of individuals
o
Citizens are able to arrange their affairs with confidence
knowing that the law that will be applied to them in future will be the
same as is currently applied
o
Continuity and stability

Equality
o
Like cases are treated alike

Efficiency

Foundations Of Law Part B Notes

Michelle Huang

Once a court has determined an issue, subsequent courts need


not expend the time and resources to reconsider it
o
The certainty as to the rules to be applied enhances the
efficiency of the court system by discouraging the commencement
or continuation of litigation or appeals that are unlikely to succeed,
and thus fostering settlement outside the courts
o
The doctrine of precedent provides principles of law to be clearly
followed
o
There are clear guidelines how to apply a legal principle,
resulting in a quicker case
Justice/Consistency of fairness
o
Precedent ensures that courts are fair and consistent in
application of legal principles
o
Precedent requires stare decisis so similar fact scenarios are
decided the same
o
Creates impartial rules of law not dependent upon the personal
views or biases of a particular judge
o
It achieves this result by impersonal and reasoned judgments
Access to change
o
Any individual has the right to take a case to court
o
Everyone may exercise their right to justice
o

Disadvantages

Inconsistent/less certain higher courts


o
Attitudes of the judicial decision-maker and the broader context
in which the decision is made, can have a major impact
o
Usually possible to state the rule for which it is authority in a
number of different ways
o
When judges feel free to depart from earlier rulings, the law can
become less certain and less predictable
o
It seems unfair if the result of a case depends on which judge
happens to hear it
o
No two cases are exactly the same
o
Judges may differ in approach, as can juries
o
Precedent can be distinguished

Does not adapt to a changing world/Creating legal uncertainty/can


place a court in a difficult position/fail to change the law
o
A precedent may appear may appear unjust and out of step with
current social conditions and expectations

Rigidity
o
A system where courts rigidly followed earlier decisions could tie
the judges too much to the past; in a rapidly changing society,
yesterday's solutions might not be good enough
o
Binding precedents from superior courts result in lower courts
being unable to change. Ration decided must apply as precedent if
higher in hierarchy

Elite
o
The adversarial system and doctrine of precedent creates an
elite class of legal professionals

Foundations Of Law Part B Notes

Michelle Huang

Not everyone can access the law


Time Consuming
o
A decision may not always be reached quickly
o
Judge must hear all arguments of parties
Judges taking over work that should be done by parliaments and law
reform commissions
o
If judges are too enthusiastic about changing the law
o

To what extent does this process allow for change in the law?
The Doctrine of Precedent is the courts application of legal principles
which have been earlier defined in the common law. It is a system used by the
courts to make law and to ensure consistency. The judgements made on
cases by superior courts provide future precedents for other courts
The reason for a decision on a point of law is the ratio decidendi. It is
this part of a case which forms the precedent to by applied to other like cases
in the future. Comments or general discussion made by a judge on a point of
law that is not directly relevant to deciding a case forms the obiter dictum
which is not binding precedent, merely persuasive
Also key to the doctrine of precedent is the application of stare decisis
to ensure that previous decisions are respected. This is why courts are bound
to follow decisions of a higher court in the court hierarchy. Binding precedent
outlines that if there is similar fact situations between cases previously
decided by a higher court, the decision must be followed. Persuasive
precedent is applicable if the decision was made outside of the Australian
court hierarchy, form another state or in a lower court
The Doctrine of Precedent allows for gradual change in the legal
system and application of law because precedent can be distinguished,
disapproved, reversed and overruled. While courts are bound by precedent, it
is possible to avoid it by distinguishing the facts of a case. As a result, lawyers
can avoid a precedent and allow for some flexibility in the application of law.
Furthermore, if a court does not agree with a previous decision, it can
disprove it. A disapproving court will normally be of the same hierarchy as the
court which made the earlier decision and so cannot overrule it, however
again there is some flexibility within the system to allow for gradual change.
Thirdly, in reversing a decision, a higher court can change the decision of a
lower court when a case is on appeal. Lastly, overruling a decision differs from
a reversal because it involves more than one case. The second case
overrules the earlier precedent if the court it necessary to allow for change in
the law due to altered social views or other circumstances.
The Adversarial System
There has been considerable debate with regards to the merit of the
Adversarial system in recent years, with evaluations and reforms being
conducted, and reforms being suggested.
Role and structure
Part of the Common Law System
Parties largely control the conduct of litigation
Evidence is elicited through witness examination and cross-examination

Foundations Of Law Part B Notes

Michelle Huang

Judge acts as umpire and does not question the witness


Compliance with rules of court enforced only at request of party
May disadvantage minority parties /lengthy/expensive
Involves the professional representation of two opposing parties, each
contending to win a case before an impartial third party by assembling
evidence and questioning witnesses.

Advantages
As stated by the Former New South Wales Chief Justice J Spigelman
the principle purpose of Adversarial legal proceedings is to identify true
factual circumstances.
The ALRC concluded that the Adversarial System is not more flawed
than other legal systems employed elsewhere, as it allows for cases to
be resolved in a safe environment and is generally regarded as good
and fair.
To allow for progress and improvement, it must be constantly reviewed
and reformed
Disadvantages
At times, the truth may become lost due to greater concern for
preserving procedural accuracy, acting as a barrier to real justice.
Justice Frankel stated that the Adversarial System rates truth too low
among the values that institutions of justice are meant to serve, with the
party who can best convince that it has truth being recompensed, rather
than the party that in fact has truth.
The notion of adversaries offers narrower scope for sharing interests and
opinions, with the application of general principles or precedence not
always reflecting the unique and complex nature of conflicts.
Although rules are generally associated with order, fairness and
consistency, the formal procedures and guidelines of the Adversarial
system do not always achieve justice effectively and fairly.
Limitations
Developing a system able to achieve an outcome through its
procedures, which is universally true and just, is difficult, with
processes needing to exhibit both flexibility and stringency.
The Justice System must not only take into account the wellbeing of the
parties involved in each case, but that of the community as a whole.
The diversity of society in terms of its needs, desires, morals and values,
which constantly evolve and change with time, makes it a difficult task.
Public satisfaction will not always occur. It is thus important that
initiatives such as the Law Reform undertaken by the ALRC are
continued in order to allow for progress and improvement.
Reforms

Foundations Of Law Part B Notes

Michelle Huang

The Australian Law Reform Commission (ALRC), who identified certain


defects in terms of legal costs, time efficiency, congestion and legitimacy,
undertook an evaluation of the Adversarial System.

Foundations Of Law Part B Notes

Michelle Huang

Discuss how precedents works within the adversarial system


Plan
Disadvantages
Doesnt accommodate for change in society
o Hard to develop a system that evolves with society and precedents
doesnt help this especially lower courts, not flexible
More concerned with procedural accuracy rather than obtaining the
truth
o Precedence doesnt allow judges to deviate from the underlying
principle of fairness and justness that were previously determined
in other cases Precedence can be unfair/inconsistent/confusing
o ^ Sometimes forces judges to go against own ethics in order to
follow precedents set by higher courts
o Different judges have different values and opinions, this can lead to
inconsistency of decisions made Precedence avoids this
Advantages
Fair
o Strict guidelines in adversarial system allows for consistency
o Precedence offers consistency as all courts are reluctant from prior
judgments unless these are outdated/unjust
o Equality: Like cases are treated alike
o In adversarial system, two opposing parties present their cases and
evidence and all must be listened to before coming to a final verdict
Adversarial system must continually reviewed and reformed in order to
allow for progress and efficiency in the eyes of the public
o This also applies to precedence as past cases do not always apply
to present problems
Other
Adversarial system is very time consuming as they have to abide by all
the legal processes and procedures and consider all the facts
presented by both parties before coming to a decision which leads to
congestion
o Precedence allows to reduce that time as the decision has already
been made and it just have to be tweaked and applied rather than
undergoing a whole decision process