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.
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 . We should not think that everything is binding in a decision. What really stands in a decision?
There is a to make between and so the other part of the judgment that we call
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 . The ratio decidendi isn’t the decision reached in a case but . We can also defined that or inclemently
=>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 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 . . 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 fact of this decision should be understood that there was a duty of care of the bar tender.
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: .
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 then both ratios will be binding and a court cannot pick a choose.
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.
Different reasoning => different ratios. In England, the judges speak with the first person.
The ratio decidendi should be distinguished from the obiter dictum (obiter dicta). Not all elements of a decision are binding.
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. .
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. .
=>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 . 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. And another signification of the doctrine is to say that the decision if it had been taken we haven’t been the same.
II) What are the advantages and disadvantages of the stare decisis doctrine ?
=> 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.
=> makes that the solution that is found in that case is unduly
=>Rigidity (to modify the law) it’s kind of difficult no to apply a previous case.
=>Complexitysince there is a so it’s hard, complicated to find the principle of the decision the ratio decidendi.
=>Not rational because it may lead to 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 .
=>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.
- English legal system and difference with the civil law
- Distinction between Common law and equity
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- House of Lords, House of Commons and the parliamentary sovereignity
- The legislation : Source of English law
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- Case Law and precedent in the English Legal System
- Stare decisis or the doctrine of binding precedent
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- What is Equity in English Common Law Tradition ?
- Equity in the english legal system
- Custome Law and Soft Law
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- How does the European court of Human Rights affect the UK?
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- English Law – English legal system