Mandatory authority, something that will cause a court to decide in your favor or, better yet, that will cause your opponent to settle a case in your favor before it gets to court. Authority comes in several versions: primary and secondary, mandatory and persuasive. Primary authority is that coming directly from a governmental entity in the discharge of its official duties. Primary authority includes documents like case decisions, statutes, regulations, administrative agency decisions, executive orders, and treaties. Secondary authority, basically, is everything else: articles, Restatements, treatises, commentary, etc.
But these are limited in use to certain circumstances. The binding part of the judgement is called the ratio decidendi and later courts are bound to follow legal principles on which the decision was based if their case contains similar facts, as for example, in Donoghue V Stevenson (1932) a precedent was set that a customer could sue a manufacturer in negligence. Obita Dicta (other things said not directly related to the decision or dissenting judgements), are persuasive rather than binding precendents, as seen
P1: Outline doctrine – inc stare decisis, ratio, court structure and law reports The Doctrine of Judicial Precedent The Doctrine of Judicial precedent is based on a principle of ‘stare decisis’ to let the decision stand. Under this doctrine, decisions of the higher courts bind the lower courts. For this doctrine to operate successfully three things are necessary; ratio decidendi, a settled court structure and accurate law reporting. P2: Ratio – inc what it is and examples Ratio decidendi, reason for deciding, sets out the legal principles a judge used when ruling a case. Ratio is binding precedent.
Judges inevitably make law in a sense whenever they interpret a statute or a piece of delegated legislation. According to the American realist John Chipman Gray (1839-1915), all law is made by judges and even a statute does not actually take effect as law until it is interpreted and applied by decisions of the courts. Judicial legal rules can be made through the operation of precedent. A common law rule is made when the judge justifies his decision on the facts of the case by using an existing legal principle or by devising a new principle or adapting an old one in novel situations. Precedent operates on the basis of judges following previous decisions.
Kedrick King Lesson 1 assignment 1-1 How does statutory law come into existence? How does it differ from the common law? If statutory law conflicts with the common law, which law will govern? Statutory law comes into existence when elected officials pass laws. Common law differs because it’s a law that is created by judges is based on past court decisions.
Andrew Robertson proposed two categories of policy considerations: ‘justice between the parties’1 and ‘justiciability, community welfare and other non-justice considerations’2 which concerns the effects that recognition of the duty may have on legal system or on people’s behaviour.4 Even when no public policy matters are said to be concerned and the decision reached on the basis of foreseeability and proximity proves desirable, the decision actually conforms to the former sense of policy where it is thought to be fair among the parties to do so. Hence, it should be correct that ‘in modern times, the courts…have recognised that whether a duty of care arises or not is ultimately a matter of policy’5 One of the reasons why policy often restrict liability is the fear of
Judicial precedent is a statement of law made by judges in the higher courts. It is based on the common law principle Stare Decisis which means to 'stand by the decision'. It was modified by the Supreme Court of Judicature through the Judicature Acts 1973-75. When making a decision, judges look to a judgement which is split into two parts. Ratio Decidendi which is the reason for the decision and Obiter Dicta, anything else said.
1. Describe these two judicial philosophies. Judicial Activism is when judges/courts do not strictly stick to the interpretation of a law, but create a new one. Easily explained, when an issue is being ruled upon, courts establish a new law to rule broadly on the issue rather than limit their verdict. A lot of magistrates go beyond the constitution and statutes words and use their own political and personal thoughts.
Methods that judges sitting in the Supreme Court can use to avoid following precedents There are several methods for judges in the Supreme court to avoid following precedents. One method is the use of Practice Statement 1966. The Practice Statement allows the Supreme Court to change the law if they believe that it is wrongly decided. It gives them the flexibility to refuse to follow previous decisions when ‘it appears right to do so’. The first use of the Practice Statement was in the case of Conway v Rimmer, although its first major use was in the case of BRB v Herrington overruling the decision in Addie v Dumbreck about the law on the duty of care owed to a child trespasser.
The decisions of the Divisions of the Court of Appeal do not form a binding precedent on each other. The decision of each Division only persuades the other such as in the cases of R v Ireland and R v Burstow 1998 and Re A (conjoined twins (2001). Both Divisions are generally bound by its past decisions by the doctrine of stare decisis. The case of Young v Bristol Aeroplane Co Ltd 1944 emphasised the points above, as well as establishing three exceptions in which the Divisions are not bound by their previous decisions, these are: * Where there are conflicting decisions in the past, the Court of Appeal can choose which one it will follow and which one it will ignore. The one they follow will then become the binding precedent as in Tiverton Estates Ltd v Wearwell Ltd 1974 avoiding Law v Jones 1974.