Stare decisis or the doctrine of binding precedent

 Stare decisis : definition, advantages, disadvantages…

A precedent, known as stare decisis, is a history of judicial decisions which form the basis of evaluation for future cases. Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can apply to a case at hand.

The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. 

I ) The doctrine of binding precedent or stare decisis :

Stare decisis means to stand by decisions so it means that all courts bind all lower courts and bind themselves so stare decisis is strictly the synonym of binding precedent. We should not think that everything is binding in a decision. What really stands in a decision?

There is a crucial distinction to make between the ratio decidendi of judgment which is the binding part of the judgment and so the other part of the judgment that we call obiter dicta.

A) The ratio decidendi :

The ratio decidendi can be defined as the rule of law upon which the decision is based. A ratio means reason and decidendi of the decision; it’s the legal reason of the decision. The ratio decidendi isn’t the decision reached in a case but the law in the decision. We can also defined that any rule of law expressly or inclementlytreated by the judge as a necessary step in reaching his conclusions that is to say that the rule of law isn’t always expressly stated in the decision and so this makes very difficult the finding of the ratio decidendi. 

=>How to find the ratio decidendi of a case?

Judges don’t mention in their decisions the ratio decidendi. This isn’t something which is the specific write of the judgment. Indeed the big part of the work of the lawyer is to find the ratio decidendi in the decisions. What is the ratio in this case? Their job is to identify the ratio in the cases. Sometimes there are various possibilities of what is the ratio decidendi in the case.

1) Identifying the material facts = identifying the appropriate level of generality or abstraction:

The more abstract the statement of the fact is the greater of subsequent cases will form in the principle. 

Example: Donoghue V Stevenson in 1932. It’s about a bottle of beer and a snake. She was a Scottish woman, she was in a bar and a friend of her bought a bottle of beer and she drinks the bottle, she realized that there was a discomposed snake in the bottle. The specific problem here was that on the legal formulae she didn’t herself bought the bottle. She didn’t have a contract with the bar tender, with Mr Stevenson. There is a different of liability if we have a contract or if we don’t have the contact. The problem was whether in the absence of the contract. There was no such a general rule to say that we should to sell the good product. In this decision the HL decided that there is a duty of care that a bar tender has to words his consumes. This is a liability justify by negligence. How this decision has be used for other cases?

For instance, if you think that the duty of care was established only when beer was sold then you will limit the application of this rule to only cases where beer was sold. 

Would the solution be same for lemonade?

The lawyers have to ask themselves would the decision be the same with a different fact. The ratio for that decision is not line to the fact but it was beer. This material fact concerns any drink and not just beer. The fact of this decision should be understood that there was a duty of care of the bar tender. If the case is to be read only if it wills concerns the ginger beer we would be have another ratio.

If case read to concern only ginger beer =>narrow ratio.

If case read to concern food and drink =>wider ratio.

The judges don’t necessary themselves explain that this case should be applied to other circumstances, this is the task of lawyers to understand what this fact should be drawn in order to make a rule of law in future cases.

If case read to concern manufacturing goods =>still wider ratio.

Reading a case might lead to different readings to find the ratio.

2) Identifying the issues raised by the parties:

To find the ratio you should find the legal issue raised by the parties. The legal issue was here in that case the liability of the bar tender, of the seller.

3) The arguments:

The arguments that each party used for the case should be analyzed. In our case the arguments of the defendant mister Stevenson: he argued that a tort of negligence doesn’t exist by itself. Argument of the plaignant: Mr Stevenson should have been more cautious in selling its bottle.

4) The solution:

It’s that there is a possibility of liability for negligence. Finally what really is the ratio decidendi of the case?

A decision may have a lot of ratio. And does happen frequently if a judgment is based on more than one line of reasoning then both ratios will be binding and a court cannot pick a choose. They use different legal reasons.

Both ratios will be binding: the court has to follow the both ratios in this case. Multiple ratios are lightly to occur since in appeal court there was always more than one judge. Each judge may render his own judgment.

Different reasoning => different ratios. In England, the judges speak with the first person. Different opinions, different judges made by several judges in the charge of the case.

The ratio decidendi should be distinguished from the obiter dictum (obiter dicta). Not all elements of a decision are binding. What is binding is the ratio and what isn’t binding is the obiter dictum.

The obiter dictum is an element of the decision which is a statement of law but which hasn’t been used to justify the decision. Obiter dicta are legal statements but which aren’t basis on the decision, they are stating in passing. 

It still interesting to see obiter dicta in a decision since or may have some strength; they may be used in a future decision to what has an element of the reasoning.

B) Handling ratios:

In certain circumstances, previous decisions should be followed and in other circumstances previous decisions should not be followed. An earlier decision is said to be followed in a little case. Following of a decision where the facts of two cases are sufficiently similar to convince the judge to follow this case.

Then it is also possible that an earlier decision will not be followed when they are different cases. An earlier case has be doubted or even disapproved when the fact are the facts of two cases are sustain the case but judges have decided that the decision should not be follow. Another ruling: a decision is said to be overruled when a court wishes that this case should not be follow anymore.

=>When a court may not follow an earlier case?

The most significant technic is distinguishing on earlier case. It’s simply away or says that it is a relevant to the current case. It can try to distinguish the fact and can said that the fact aren’t the same, aren’t similar so I haven’t to apply the same decision. They are distinguishing the material facts. Sometimes, it’s down just to avoid the application of one case when the judges are clever in their statement of the fact.

The per incuriamdoctrine: whenever a decision is taken on the trunkful basis. The court didn’t have the information or they didn’t know a decision or a statute. Then it permits the court no to follow the ratio. And another signification of the doctrine is to say that the decision if it had been taken we haven’t been the same. Then, the final doctrine is the changes circumstances doctrine, this is a doctrine which justify that a court will not follow a previous decision because the circumstances has changed and it’s legitimate to change the rule of law.

II) What are the advantages and disadvantages of the stare decisis doctrine ?

A) Advantages:

=>Degree of certainty upon which individuals can rely in the conduct of their business since like cases are treated alike. And since the decisions are very detailed, future litigants know witha great degree of certainty what the decisions will be.

=>Greater flexibility than codify law because courts can create a new precedent each time it has to solve a new case.

=>A better understanding of the decision: the decisions are very detailed, it’s easy to understand.

B) Disadvantages:

=>Particularity of the case makes that the solution that is found in that case is unduly influenced by a desire to do justice and not necessarily to create the best rule of law.

=>Rigidity (to modify the law) it’s kind of difficult no to apply a previous case.

=>Complexitysince there is a hugeamount of cases and no statement of principle so it’s hard, complicated to find the principle of the decision the ratio decidendi.

=>Not rational because it may lead to illogical distinctions maid only to distinguish a former case that has become unsatisfactory.

=>No systematic development of the law, if you need to know all the cases then no systematic development of law.

=>Social discrimination: if you need a new rule, if you want to change the rule, you have to appeal and it costs a lot of money.

=>Lack of appreciation of  the impact a decision may have.

=>Retrospective affect: it’s not so well in comparison to statute law, it’s not compatible with the principle of justice.

=>Undemocratic:the one who are doing the law aren’t elected by the citizens.

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