Essay on Binding Precedent

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The English system of precedent is based on the Latin maxim “Stare Decisis et Non Queita Movere” stand by what has been decided and do not unsettle the established. The idea is that by following precedents, which are the previous decisions of judges, fairness and certainty will be provided. A binding precedent is to be followed whether it is in sympathy with the decision or not. Precedents can only operate if the legal reasons for past decisions are known. Therefore, at the end of a case (civil) there will be a judgement in which the judge will give not only the decision but also the legal reasoning which lies behind it. There are two main principles that are involved in judicial precedent; these are ratio decidendi and the obiter dictum. Ratio decidendi is the legal reason or principal which lays behind the decision and it is this ratio which will provide the precedent for judges to follow in future cases. The remainder of the judgement Obiter Dicta are statements made “by the way”. These comments do not form part of the reasoning and are therefore not part of the precedent. For instance, sometimes a judge will speculate on what his decision would have been if the material facts had been different. Sometimes, part of the Obiter Dicta may be put forward in future cases and although it will not form a binding precedent it may help to ‘persuade’ a later judge towards a particular view in the law. The doctrine of binding precedent or stare decisis is central to the English legal system. The doctrine, states that within the hierarchy of the English courts a decision by a higher court will be binding on lower courts. This means that when judges try cases they will check to see if similar cases have come before a court previously. If there was a precedent set by an equal or higher court, then a judge should follow that precedent. If there is a precedent set in
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