Explain the doctrine of precedent (10)

Judicial precedent is concerned with case law only. Like cases are dealt with in the same way. This follows the main
principle of stare decisis which means “stand by your decision.” The system tries to ensure that there is a constant
application of this law in the courts. There are 4 parts of case law and these are the facts of the case, the ratio
decidendi, the obiter dicta and the verdict. The facts involve the material facts of the case (what happened), the
ratio decidendi is the reasons for deciding on the outcome, the obiter dicta are the other things said (e.g. bible
passages and human rights) and the verdict is the outcome of the case.

However, there needs to be a balance between certainty and flexibility within the law. Certainty refers to stare
decisis in that the law needs to stand by its decision. Certainty helps when predicting the outcome of a case, this
tends to be a huge benefit to lawyers. However, flexibility is needed so that the law can adapt through time as
beliefs become out of date and need to be changed. More flexibility was issued to the House of Lords in the practice
statement. This meant that they could change their decisions “whenever it is right to do so.”

Furthermore, the hierarchy of the courts is essential in the system of judicial precedent. The superior courts (e.g. the
supreme court) bind the inferior courts and some courts are bound by their own decisions. Precedent is based on
judges following their previous decisions of higher courts to try and make the law more certain. There are a number
of tools judges can use when deciding whether to follow previous precedent. These are called, follow, overrule,
reverse, distinguish and depart. Follow involves creating the same outcome as previous precedent. Overrule involves
a superior court overruling the decision of a court below it and therefore, change the law. Reversing involves
reversing the decision of a lower court in the same case. Distinguish involves inferior courts pointing out material
differences in a case to previous precedent and the court may decide not to follow it from that.

The binding precedent is the part of the judgement that other judges have to follow. The ratio decidendi made by
the judge high enough in the courts will bind the future decisions of other judges. Persuasive precedent need not be
followed but it may be helpful to a judge deciding on a verdict. If a judge decided to follow a past decision that was
not binding, the decision is said to be persuasive. An example of this is in R v R (1991). However, original precedent is
where a judge creates an original precedent when they decide a case that has never been seen before the courts.
The decision may be made “by analogy,” meaning that it is based on a similar case.

One advantage of the doctrine of precedent is that the system of this creates certainty within the law. This is
because of the main principle called “stare decisis,” meaning “stand by your decision,” that all judges must consider
when deciding on the verdict of a case. Another advantage of the doctrine of precedent is that judgements give
detailed rules for other judges to follow. This is an advantage because it allows all judges to follow the same process
making the system fair.

On the other hand, one disadvantage of the doctrine of precedent is that the rigidity of the system prevents law
being changed. Another disadvantage of the doctrine of precedent is that illogical distinctions may be made by
judges in a case to avoid following a previous decision.