Precedent
| Author | Rob Jerrard |
| DOI | 10.1177/0032258X8405700111 |
| Date | 01 January 1984 |
| Published date | 01 January 1984 |
| Subject Matter | Article |
ROB
JERRARD,
LLB, LLM,
FIPI,
MBIM.
City
of
London Police
PRECEDENT
The first
of
a short series on the law
and
its interpretation by
Inspector R. Jerrard.
Under
the English Legal Systemcourts makeahabit of followingtheir
previous decisions within more
or
less well defined limits. This is
called the doctrine of precedent.
The
part
of a case
that
is said to
possess
authority
is the ratio decidendi,
that
is to say, the rule
oflaw
upon
which
the
decision is founded. Finding the ratio decidendi of a
case is often very difficult.
It
is really an
art
gradually acquired
through
practice
and
study.
The
ratio decidendi of a case, or ratio, is
not
decided by the
uttering
Judge
but
by the Judge before whom the decision is
put
subsequently as a precedent.
The
ratio of a case can, therefore, be
defined as the material facts of the case, plus the decision thereon.
In
contrast
with the ratio decidendi is the obiter dictum. This
can
be defined as a mere saying by the way or chance
remark
which is
not
binding
upon
future courts,
though
it may be respected according to
the
reputation
of the Judge, the eminence of the court,
and
the
circumstances in which it came to be pronounced.
The
reason
for
not
regarding an obiter dictum as binding is
that
it was probably made
without a full consideration of the cases, or without a full
consideration of all the consequences
that
may follow from it.
Obiter can, therefore, be defined as the non-binding
part
of a
judgment
and
again it is
not
normally decided
upon
by the uttering
Judge
himself
but
by the
Judge
before
whom
it is
put
as a persuasive
precedent. Exception to this
can
occuras, for instance, when a
Judge
says,
"The
Court
is
not
required to pass
judgment
...
on
...
however
...
". That.which follows will be obiterbecause the
Judge
has stated
he was
not
required to consider
that
point.
Stare
decisis
(to
stand
by decided matters)
According to the English doctrine of precedent, a
court
is
bound
to
follow
any
case decided by a
court
above it;
and
appellate courts
(other
than
the House of Lords) are
bound
by their previous
decisions except in very limited circumstances.
What
is
meant
by
saying
that
a
court
is
"bound
to follow a case", or
"bound
by a
decision"? Practically speaking, "case"
and
"decision"mean the ratio
decidendi as explained before. It can, therefore be defined as keeping
to the rationes decidendi of past cases.
January /984 63
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