What is judicial precedent Essay
What is judicial precedent
Find out how a proposal for a new law becomes a bill
Understand what a ‘green paper’ and a ‘white paper’ are Learn the differences between a public bill and a private bill Find out about the different stages that the bill has to pass through, such as first, second and third reading Find how a bill is amended as it passes through the Commons and the Lords Learn about Royal Assent – when a bill becomes an Act of Parliament
Describe the creation of statute.
Discuss the advantages and disadvantages of statute
Compare judge made law with statute – judge made law (common law)
Form an opinion
Discuss the impact of ECJ, Custom Textbook and other s law
What is Judicial Precedent?
Judicial precedent is set during cases where a dominant ruling is given either concerning a point of law or in the matter of a case under fresh legislation a judge gives a clarification of that new law grounded on the determination of parliament. Parliament create the law, judges deduce and interpret the law and apply it.
It can also be created by a judge constructing a statement ratio decidendi (Latin: the reason for deciding). These are the principals of law on which the judge influences a decision and his motives for doing so.
Only ratio is binding on lower courts as opposed to obiter dictum (Latin: a remark in passing). This is a statement made by a judge when making a ruling but was not vital to the verdict in the case. This can only be mentioned as influential argument in forthcoming cases.
How do judges avoid Judicial Precedent?
1. A judge will generally be sure by the judicial verdicts of higher courts. That is how the common law method functions, the gradual expansion of the law by judicial verdicts which bind inferior and future courts. 2. A judge might not be certain by previous verdicts if:
The judge has the authority to upturn the preceding decision, and concludes that the earlier decision was wrong in law (e.g. the famous case of R v R overturned a 19th Century authority which held that there could be no rape within marriage). The judge may find that the prior decision is “distinguishable” – that the realities underlying the conclusion were so diverse from those of the present case that the verdict is not applicable to the current case. 3. A prior decision may also comprise remarks about the law which were not decision to the verdict. These interpretations are known as “obiter dicta”. Obiter Dicta are not binding, but may be influential.