Judges and the law
Judges and the law

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Judges and the law

3.4.3 Summary of binding precedent

In this section you have seen:

  • that not everything in a court case sets a precedent

  • the difference between ratio decidendi (the statement of legal principles material to the decision) and obiter dictum (the discussion of legal principles raised in argument but not material to the decision)

  • that the binding element in a future case is the ratio and that, while the obiter will never be binding, it may have strong persuasive force

  • the situations in which judges do not have to follow previous decisions:

    • overruling a previous case

    • distinguishing a previous case.

Table 2 Summary of binding precedent

Legal termDefinitionComment
ratio decidendiThe reason for decidingThe part of the judgment which creates law – the binding precedent
obiter dictaThings said along the wayOther parts of the judgment. These may be persuasive but do not create law
The decisionThe outcome of the case for the parties involved
OverrulingA decision which states that a legal rule in an earlier case is wrongR v R (1992) is an example
DistinguishingA method of avoiding a previous decision because the facts in the present case are different

Activity 15 The courts and judicial precedent

Timing: 0 hours 40 minutes

This activity will enable you to check your knowledge and understanding of the court hierarchy and system of precedent. It is important that you have a thorough understanding of them. This activity is in three parts.

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