Essay On Judicial Precedent

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This Essay will explore how judge made law (Stare decisis) evolved in England and Wales through the doctrine of legal precedent. Judicial precedent is regarded as the most important source of law that offers predictability, uniformity, equality, certainty and convenience. Judicial precedent though has negative attributes. Case law is notoriously slow to change through rigidity and only repealed through an appellate court or legislation.

Legal precedent is known by the Latin ‘Stare decisis et non quieta movere’ or to stand by decisions and not to disturb settled matters”. When a judicial judgement has been given by the court that will be binding on any future court if the material facts are the same. This doctrine can be traced back to the
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Precedent cannot be just on the Obiter, but neither Irrelevant as a proposition, only in applying the Ratio to those material facts. The disadvantage is that persuasion is applied to the Obiter to the extent of applying it as though it is law with the Ratios. The Obiter dicta however is influential only as a persuasion on future cases and not legally binding on the ratio.

The English justice system consists of two types of Judicial Precedent. That being Persuasive and Binding. Persuasive precedent consists of the Obiter dicta reached in a lower courts that the higher courts may take into consideration, however not legally binding on that higher court. It is important to note that there must be objective similarities between the two cases for a higher court to take matters into consideration.
R v. R [1992] 1 AC 599 is a clear example of spousal rape being permitted under common law made illegal. The judiciary through persuasive precedent made new law outside of parliament. The case was decided in the Court of Appeal for which the House of Lords being a superior court adopted the precedent set in a lower
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Distinguishing is where the current case is substantially different from a similar precedent or the Ratio being too narrow. The judge will then reach a judgement on similar cases and individual facts. Corkery v. Carpenter [1951] 1 KB 102

Overruling is where a higher court in another action concludes a ratio/principle decided in a lower court was incorrect. Conway v. Rimmer [1968] AC 910. The Appellate court then sets a new precedent with a different judge to the original case. Reversing a precedent is where a previous case is sent to the appellate court and the previous precedent is overturned. Consequently and a new precedent is then set by a higher court. Departing precedent is unique to the Court of Appeal with any of its previous decisions. It can do this with any of the three exceptions as set out in Young v. Bristol Aeroplane Co Ltd [1944] KB 718. Those decisions being that its previous precedent was made with a lack of care. (Per incuriam) secondly the court has set two conflicting precedents, and finally the Court of Appeals decision is incompatible with a later Supreme Court ruling.

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