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

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;
Hierarchy:

The Supreme Court

Court of Appeal
Divisional Courts
High Court
Inferior courts: Crown Court, Magistrates Court, County
Court, Tribunals

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

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
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

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!