role of precedent
AFFECT OF HUMAN RIGHTS ACT ON JUDICIAL PRECEDENT
Although the Human Rights Act 1998 has impacted on the judicial understanding of precedent, the underlying features of the doctrine remain unchanged. The doctrine of judicial precedent is based on one of the most fundamental aspects of any legal system and that is, all like cases must be treated alike. It involves the application of the principle of stare decisis i.e to stand by the decided. The doctrine of judicial precedent has always played a pre-eminent role in English law, and it is there to ensure some degree of certainty in law. The American Judge, Oliver Wendell Holmes Jr. once said “The life of law has not been logic, it has been experience.” Miles Kighton put it rather more cynically in Punch: “A trick which has been tried before, successfully.” Precedent achieves consistency, contributes to the maintenance of a regime of stable laws and ensures that law develops only in accordance with the changing perceptions of the community and therefore; more accurately reflects the morals and expectations of the community.
There are two elements of the doctrine of judicial precedent, namely, ratio decidendi and obiter dicta. The ratio decidendi follows from the doctrine of precedent, that like cases should be treated alike; it means that if a court is dealing with a case which shares material facts with a previously decided case, then the court is generally bound by the previous decision and should arrive to the same conclusion. However, the court is not bound by the whole decision but only the rules and principles the decision creates and is based on. This is what is called the ratio decidendi. It is a crucial part of a binding precedent which includes the relevant authoritative statements and legal reasoning. Only the ratio binds judges in the future and all other pronouncements are said in passing which are considered the obiter dicta.
Before the Human Rights Act came into existence, the Supreme Court
Although the Human Rights Act 1998 has impacted on the judicial understanding of precedent, the underlying features of the doctrine remain unchanged. The doctrine of judicial precedent is based on one of the most fundamental aspects of any legal system and that is, all like cases must be treated alike. It involves the application of the principle of stare decisis i.e to stand by the decided. The doctrine of judicial precedent has always played a pre-eminent role in English law, and it is there to ensure some degree of certainty in law. The American Judge, Oliver Wendell Holmes Jr. once said “The life of law has not been logic, it has been experience.” Miles Kighton put it rather more cynically in Punch: “A trick which has been tried before, successfully.” Precedent achieves consistency, contributes to the maintenance of a regime of stable laws and ensures that law develops only in accordance with the changing perceptions of the community and therefore; more accurately reflects the morals and expectations of the community.
There are two elements of the doctrine of judicial precedent, namely, ratio decidendi and obiter dicta. The ratio decidendi follows from the doctrine of precedent, that like cases should be treated alike; it means that if a court is dealing with a case which shares material facts with a previously decided case, then the court is generally bound by the previous decision and should arrive to the same conclusion. However, the court is not bound by the whole decision but only the rules and principles the decision creates and is based on. This is what is called the ratio decidendi. It is a crucial part of a binding precedent which includes the relevant authoritative statements and legal reasoning. Only the ratio binds judges in the future and all other pronouncements are said in passing which are considered the obiter dicta.
Before the Human Rights Act came into existence, the Supreme Court
Bibliography: Sixthform.law.info www.oup.com/uk/orc/bin/9780199557745/hw7ech06.pdf www.e-lawresources.co.uk www.lawteacher.net law.au.dk thestudentroom.co.uk Learning Legal Rules – James Holland Julian Webb Guest lecture on precedent VLE PORTAL Athens web portal