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
|ratio decidendi||The reason for deciding||The part of the judgment which creates law – the binding precedent|
|obiter dicta||Things said along the way||Other parts of the judgment. These may be persuasive but do not create law|
|The decision||The outcome of the case for the parties involved|
|Overruling||A decision which states that a legal rule in an earlier case is wrong||R v R (1992) is an example|
|Distinguishing||A method of avoiding a previous decision because the facts in the present case are different|
Activity 15 The courts and judicial precedent
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.