Doctrine of Precedent

Introduction to the Doctrine of Precedent

The doctrine of precedent (also known as stare decisis, Latin for “to stand by things decided”) is a fundamental principle in common law systems. It refers to the process whereby courts follow previously decided cases when making decisions on similar cases. This ensures consistency and predictability in the application of the law. Judges make law by establishing precedents. A precedent is the reasoning behind a court’s decision. It establishes a legal principle or legal rule, which can be used by judges to provide guidance when deciding future cases. The doctrine of precedent depends on the courts being organised or ranked in a hierarchy from lowest to highest.

KEY TAKEAWAY: The doctrine of precedent ensures consistency and predictability in the legal system by requiring courts to follow previous decisions.

Features of the Doctrine of Precedent

1. Court Hierarchy

The doctrine relies on a court hierarchy. Superior courts bind lower courts within the same jurisdiction.

2. Ratio Decidendi

The ratio decidendi (Latin for “the reason for deciding”) is the binding part of a precedent. It is the legal reasoning upon which a court’s decision is based. Lower courts in the same hierarchy must follow the ratio decidendi of higher courts when the material facts of a case are similar.

3. Obiter Dictum

Obiter dictum (Latin for “things said by the way”) refers to statements made by a judge that are not essential to the decision and are therefore not binding. While not binding, obiter dictum can be persuasive and may influence future decisions.

REMEMBER: Ratio is binding, Obiter is optional.

Types of Precedent

1. Binding Precedent

Binding precedent is the ratio decidendi of a superior court that must be followed by lower courts in the same hierarchy when deciding cases with similar material facts. The precedent established by a superior court in the same court hierarchy must be followed by judges and magistrates in lower courts when they are deciding future cases with similar material facts.

2. Persuasive Precedent

Persuasive precedent is a precedent that a court is not bound to follow but may consider when making a decision. Persuasive precedent can come from:

• Lower courts in the same hierarchy
• Courts in other jurisdictions (e.g., other states or countries)
• Obiter dictum statements
• Tribunals

EXAM TIP: Be able to distinguish between binding and persuasive precedent by identifying the court hierarchy and the nature of the legal reasoning (ratio vs. obiter).

Ways to Avoid Following a Precedent

Judges can avoid following an existing precedent in several ways, allowing the common law to evolve.

1. Reversing

Reversing occurs when a superior court overturns the decision of a lower court in the same case on appeal. The higher court substitutes its decision for that of the lower court, creating a new precedent.

2. Overruling

Overruling occurs when a superior court decides that a previous precedent set by a lower court or a court of equal standing is incorrect and should no longer be followed. This creates a new precedent that replaces the old one.

3. Distinguishing

Distinguishing occurs when a court decides that the material facts of the case before it are sufficiently different from the facts of a previous case, so that the previous precedent does not apply. This allows the court to avoid following the precedent and create a new one.

4. Disapproving

Disapproving occurs when a court expresses its disagreement with an existing precedent, but is still bound to follow it. This usually happens in lower courts. Disapproval can highlight the need for the precedent to be reconsidered by a higher court.

COMMON MISTAKE: Students often confuse reversing and overruling. Remember that reversing happens in the same case on appeal, while overruling involves a different case.

VCAA FOCUS: VCAA exams often include scenarios where students must identify whether a judge is reversing, overruling, distinguishing, or disapproving a precedent. Understand the nuances of each.