The Doctrine of Precedent

Common law Common law is also known as judge-made law, case, law or precedent law

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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

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 – obvezujući presedan Persuasive precedent – preporučljivi presedan Precedent law – pravo riješenih slučajeva Divisional courts – sudski odjeli Visokog suda Law Reports – zbirka sudskih odluka Dissenting judgment – sudska odluka uz izdvojeno mišljenje Ratio decidendi – razlog za donošenje odluke Obiter dicta – usputne primjedbe

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