1

نشاته و القانون تاريخ judicial precedent

Introduction

I am happy to be able to introduce this assignment to the readers. We have few

students in our country, who interest themselves in academic study of law.

In this assignment I have written and include information about judicial

precedents and also look about history of judicial precedent in Maldives and some other common

law and civil law countries too. And also I include some case to readers to identify and

understand those law systems. For this assignment I had done lots of research works and also I

had faced lots of difficulties to get information from different legal areas.

I trust the assignment will be useful not only to students in legal institution, but

that it will reach wider circle of academic and students those who are interested in law.

I hope that this assignment will be welcomed by all those whom it is meant.

Ali didi

Ali didi Sharia and law degree year two

2

نشاته و القانون تاريخ judicial precedent

Judicial Precedent

Introduction of Judicial Precedent

In the dictionary of law, judicial precedent is a judgment of a court of law cited as

an authority for deciding a similar set of facts; a case which serves as authority for the legal

principle embodied in its decision. The common law has developed by broadening down from

precedent to precedent.

A judicial precedent is a decision of the court used as a source for future decision

making. This is known as stare decisis (to stand upon decisions) and by which precedents are

authoritative and binding and must be followed. (1)

Judicial precedent means the process whereby judges follow previously decided

cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an

application of the principle of stare decisis ie, to stand by the decided. In practice, this means that

inferior courts are bound to apply the legal principles set down by superior courts in earlier

cases. This provides consistency and predictability in the law.

In giving judgment in a case, the judge will set out the facts of the case, state the

law applicable to the facts and then provide his or her decision. It is only the ratio decidendi (the

legal reasoning or ground for the judicial decision) which is binding on later courts under the

system of judicial precedent. (2)

Any observation made by the judge on a legal question suggested by the case

before him or her but not arising in such a manner as requiring a decision is known as obiter

dictum (a saying by the way). There may several reasons for a decision provided by the judge in

any given judgment and one must not assume that a reason can be regarded as 'obiter' because

some other 'ratio' has been provided. Thus, it is not always easy to distinguish ratio decidendi

from obiter dictum when evaluating the effects of a particular decision. (3)

1- http://legal-dictionary.thefreedictionary.com/binding+precedents

2- http://nuweb.northumbria.ac.uk/bedemo/Sources_of_English_Law/page_10.htm 3- http://www.lectlaw.com/def2/p069.htm

Ali didi Sharia and law degree year two

3

نشاته و القانون تاريخ judicial precedent

In all countries, at all times, the decisions of courts are treated with respect, and

they tend to be regarded as ‘precedents’ which subsequent courts will follow when they are

called upon to determine issues of a similar kind.

The reliance upon precedent upon precedent has been both the hallmark and the

strength of the common law. Its rules have been evolved inductively from decision to decision

involving similar facts, so that they are firmly grounded upon the actualities of litigation and the

reality of human conduct. And new cases lead onwards to reach forward to new rules. Its

principles are to employ a popular phrase open ended: they are not firm and inflexible decrees.

This characteristic of the common law contrasts again with the European civil law. (4)

History of judicial precedent

The history of judicial precedent is intimately bound up which the history of the

law reports, and for reasons already stated, it is manifest that there can be no strict regards for

precedent without a reliable and accurate system of law reporting. The reports of Sir John

Burrow, published in 1765, mark a new epoch in law reporting. He was the first of regular series

of authorized reporters attached to particular Courts who reported decisions for publication and

first to make orderly reports approximating towards the modern standard. It is there for

convenient to deal with the reports and text writers from the close of the year book period up to

the year 1765. Their plan is to consider a few of the leading reports of the period, and to examine

some of the cases cited in detail. In the absence of the first editions, they cannot be certain that

all the precedents were actually cited in court, nor do they know how many are to be attributed to

the reporter himself or to the annotators of the various editions who invariably embellished the

originals with a wealth of references. From the increasing number of citations, we have to

consider the extent to which precedents were treated as authoritative, and in this task

considerable help is to be obtained from the leading legal treatises of the period. (5)

The fact that Plowden and Dyer took up the work of reporting when the last

manuscript Year Book appeared in 1535, is a good illustration of the dependence of the law upon

judicial decisions. Most of the reports down to the end of the seventeenth century were intended

for the private instruction of the reporter, and not for publication, and this probably accounts for

some of the inelegantia.

4- English for law, Alison Riley, 1991, LLB, MacMillan publishers, page 15, 16.

5- History of judicial precedent, the lewis,T.Elis,1931, page, 425,426

Ali didi Sharia and law degree year two

4

نشاته و القانون تاريخ judicial precedent

Precedent, that is decisions in previous similar cases, have for many hundreds of

years been important in the development of English law, but until the latter part of the nineteenth

century were only persuasive: that is a judge would be influenced by the decision in a previous

case, but did not consider himself bound by it.

The modern doctrine of the precedent, under which a judge is bound by the

decision in a previous case, even if he considers it to be unjust or illogical, is of comparatively

modern origin. In the early days of common law, judges considered that their judgments were

merely declaratory. Common law was based on general custom, and they were merely

enunciating what that custom was. This attitude left no room for the development of a doctrine of

precedent. In any event, there was no method of recording judgments fully and accurately. The

development of printing and the improvement in the standards of reporting meant that from the

sixteenth century onwards more attention was decisions in previous cases. By the early

nineteenth century it had been accepted that regard must be paid to previous decisions and that it

was not for the courts’ to reject them and abandon all analogy to them’. Later in the nineteenth

century two events occurred which laid the groundwork for the establishment of the system of

binding precedent. In 1865 the Council of Law Reporting was created, and this ensured that for

the future there would be a consistent and reliable system of reporting cases. There had been

many earlier series of reports, but their reliability varied considerably. The whole system of

courts was reorganized by the Judicature Act 1873-1875 and the Appellate Jurisdiction Act 1876,

and this made easier the task of recognizing the hierarchy of courts. (6)

Types of judicial precedent

1- Binding precedent

Binding precedent refers to existing law that must be followed. Such precedent

exists within common law jurisdictions that recognize judicially made law. Generally, it follows

the doctrine of stare decisis, which means "maintain what has been decided and do not alter that

which has been established."

6- http://www.exampleessays.com/viewpaper/14277.html

Ali didi Sharia and law degree year two

5

نشاته و القانون تاريخ judicial precedent

In law, a binding precedent (also mandatory precedent or binding authority) is a

precedent which must be followed by all lower courts under common law legal systems. In

Ghana law it is usually created by the decision of a higher court, such as the Supreme Court.

Binding precedent relies on the legal principle of stare decisis. A stare decisis means to stand by

things decided. It ensures certainty and consistency in the application of law. Existing binding

precedents from past cases are applied in principle to new situations by analogy. (7)

There are three elements needed for a precedent to work. Firstly, the hierarchy of

the courts needs to be accepted, and an efficient system of law reporting. 'A balance must be

struck between the need on one side for the legal certainty resulting from the binding effect of

previous decisions, and on the other side the avoidance of undue restriction on the proper

development of the law.

Certain countries and jurisdictions follow a common law system of law. For

example, England and most states within the United States, with the exception of Louisiana, use

this type of system. It is an alternative to a civil law system, which is used by other countries

including France.

In a common law system, when a judge makes a ruling on a case, that ruling

becomes the law. For example, if a judge presiding over a contract law case says that the parties

signing the contract have a duty to read before they sign, then it becomes the law that any parties

signing a contract have a duty to read it. Judge made law, also called common law or case law, is

the law and remains the law unless the state or federal legislature passes a different rule changing

the common law. Judges can also define laws passed by the legislature, and those definitions and

interpretations also become the law. (8)

All of the body of law made by the judges is referred to as precedent. Only some

precedent, however, is binding precedent. Whether precedent is considered binding or not

depends on who made the rule.

There is a hierarchy of courts within the US: courts of appeals, for example, are

higher in importance than local courts in most states. Supreme courts are the highest court of all,

7- http://www.oppapers.com/essays/What-Is-Binding-Precedent/634526

8- http://www.wisegeek.com/what-is-a-binding-precedent.htm

Ali didi Sharia and law degree year two

6

نشاته و القانون تاريخ judicial precedent

except in New York where the Supreme Court is the lowest court. When a higher court makes a

ruling, it is binding on all courts at that level and lower. For example, if the Supreme Court

makes a ruling, it is binding on appellate courts.

Each state and the federal government also have their own court systems. A state

court ruling is only binding precedent on other courts at or below its level within the state. A

federal court ruling is only binding precedent on other courts at or below its level on the federal

level. If the Supreme Court of the United States makes a ruling, it is the highest court of all and

is considered binding precedent on any and all other courts within the United States. (9)

2- Persuasive precedent

Persuasive precedent is precedent that doesn’t necessarily have to be followed- it

is not binding. However it can be used to help judges make decisions in future cases, using it to

guide their own decision-making.

Persuasive precedent includes examples of situations that are later considered

persuasive. Decisions made in lower courts to the one a judge is sitting in can be followed as

persuasive precedent. For example a law lord might consider a decision made in the county

court; this helps them to make a judgment. An example of this is R v R (1991), where the House

of Lords agreed with the reasoning of the Court of Appeal, in that rape within marriage cannot be

excused. (10)

An obiter dicta is also considered persuasive precedent, this is simply the

reasoning behind the judgment that is not binding, also known as other things said. This was

present in R v Howe (1987) this included the judges deciding that duress is not held an

acceptable dismissal of murder. The obiter dicta from this case were later used in R v Gotts

(1992). (11)

Decisions made outside of the English Legal System are also, quite obviously not

binding, and therefore persuasive. For example a case in America – Re AC (1990) had similar

9- http://www.wisegeek.com/what-is-a-binding-precedent.htm10- http://law.jrank.org/pages/21573/precedent.html#ixzz1HPCstIn211- http://law.jrank.org/pages/21573/precedent.html

Ali didi Sharia and law degree year two

7

نشاته و القانون تاريخ judicial precedent

facts of a later case within the English Legal System; it was used as persuasive precedent to help

the judges make a judgment.

Reasoning by the Privy Council can only be used as persuasive precedent as it is

outside the English Hierarchy of the Courts. The Privy Council is made up of Law Lords, who

also sit in the House of Lords. (12)

The Courts of Hierarchy

The court of hierarchy in European court of justice

The house of lord

This is a highest court in land unless a matter of EC law is involved. The house of

lord was bound to by its own previous decisions until 1966 when Lord Gardiner LC announced a

change of practice. A decision of the House of Lords binds all lower courts.

Court of Appeal (Civil Division)

The Court of Appeal is bound by decisions of the House of Lords even if it

considers them to be wrong. Decisions of the Court of Appeal itself are binding on the High

Court and the county courts.

Court of Appeal (Criminal Division)

In principle there is no difference in the application of stare decisis in the civil and

criminal divisions of the Court of Appeal. In practice, however, in addition to the Young

exceptions, because a person’s liberty may be stake, precedent is not followed as rigidly in the

criminal division. (13)

The High Court

The High Court is bound by the Court of Appeal and the House of Lords but is not bound by the other High Court decisions. However they are of strong persuasive authority in the High Court and are usually followed. The decisions of individual High Court judges are binding on the county courts.

12- http://law.jrank.org/pages/21573/precedent.html13- http://en.wikipedia.org/wiki/Court_of_Appeal_of_England_and_Wales

Ali didi Sharia and law degree year two

8

نشاته و القانون تاريخ judicial precedent

Crown Courts

Decisions made on points of law by judges sitting at the Crown Court are not

binding, though they are of persuasive authority. Therefore there is no obligation on other Crown

Court judges to follow them.

County Courts and Magistrates Courts

The decisions of these courts are not binding. They are rarely important in law

and are not usually reported in the law reports. (14)

The courts of hierarchy in Maldives

The Maldives was under the protected status of the UK until 1965; as a result of

this the legal system has been influenced by English common law as well as Islamic law.

Officially all citizens of the Maldives must be Muslim and the majority follows the Shafi School

of Islamic jurisprudence. According to the constitution of 2008 the Maldives is Republic based

on Islamic principles and Islam as the religion of the State. And also the laws which is passed by

the peoples majlis and assented to the president, regulations made under such laws and the

practices of the government and also the norms and provisions of the Sharia established by the

Quran, the traditions of Prophet Mohamed and the rules derived there from. (15)

There are four level courts in Maldivian court system. The lowest courts are the

Island Magistrates Courts. There is an Island Court on each of the inhabited islands of Maldives.

These courts have jurisdiction to hear minor criminal cases and civil cases. At the next level are

the Male’ Courts. There are four of these courts, which are the Civil Court in Male’, Criminal

Court in Male’, Family Court in Male’, and the juvenile Court in Male’. Male’ Courts have

Jurisdiction to hear all types of cases and sit courts of first instance.

Next is high court its second most powerful court in Maldives. A Supreme Court

was established by the President of Maldives on the 19th September 2008 which is a historical

event in Maldives. Uz. Abdulla Saeed, of Alivaage in Seenu atoll Meedhoo, has been appointed

as the Chief Justice of the interim Supreme Court created under the new Constitution. (16)

14- http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/EUROPEANCOURTOFJUSTICE.htm

15- Interview with supreme court judge Abdulla saeed, 9th February 2011.

16- http://kish.in/supreme-court-of-maldives/

Ali didi Sharia and law degree year two

9

نشاته و القانون تاريخ judicial precedent

Distinguishing of precedent

A binding precedent is a decided case which a court must follow. But a previous

case is only binding in a later case if the legal principle involved is the same and the facts are

similar. Distinguishing a case on its facts, or on the point of law involved, is a device used by

judges usually in order to avoid the consequences of the earlier inconvenient decision which is,

in strict practice, binding on them. (17)

What is reasonably distinguishable depends on the particular cases and the

particular court- some judges being more inclined to distinguish disliked authorities than others.

In jones v Secretary of State for Social Services 1972, Lord Reid stated: “it is notorious that

where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on

inadequate grounds. I do not think that they act wrongly in so doing; they are adopting the less

bad of the only alternatives open to them. But this is bound to lead to uncertainty...”.

In other extreme, Buckley LJ in Olympia Oil v Produce Brokers 1914 stated: “ I

am unable to adduce any reason to show why that decision which I am about to pronounce is

right….but I am bound by authority which, of course, it is my duty to follow….”. (18)

Overruling of Precedent

A high court can overrule a decision made in an earlier case by a lower court eg,

the Court of Appeal can overrule an earlier High Court decision.

Court considers that the rule of law contained in the previous ratio decidendi is no

longer desirable. An example of the former is the overruling of Anderson v Ryan 1985. The

House of Lords in R v Shivipuri 1986 concerning the Criminal Attempts Act 1981, and an

example of the latter is the House of Lords’ decision in Miliangos v George Frank Ltd 1975

which overruled previous authority that judgements could not be given in foreign currency. (19)

17- http://interpretationofstatutes.blogspot.com/2010/10/precedent-overruling-reversing-

and.html#axzz1HiNXb7hZ

18- http://interpretationofstatutes.blogspot.com/2010/10/avoiding-precedent-part02.html#axzz1HiNXb7hZ

19- http://www.vanuatu.usp.ac.fj/courses/LA313_Commercial_Law/Cases/Milliangos_v_George_Frank.html

Ali didi Sharia and law degree year two

10

نشاته و القانون تاريخ judicial precedent

Advantages and Disadvantages of Precedent

Advantages

1- There is certainty in the law. By looking at the existing precedents it is possible to

forecast what a decision will be and plan accordingly.

2- There is uniformity in the law. Similar cases will be treated in the same way. This is

important to give the system a sense of justice and to make the system acceptable to the

public.

3- Judicial precedent is flexible. There are numbers of ways to avoid precedents and this

enable the system to change and adapt to new situations.

4- Judicial precedent is practical in nature. It is based on real facts, unlike legislation.

5- Judicial precedent is detailed. There is a wealth of cases to which to refer. (20)

Disadvantages

1- Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a

number of reasons.

2- There may be considerable wait for a case to come to court for a point to be decided.

3- Cases can easily be distinguished on their facts to avoid following an inconvenient

precedent.

4- There is far too much cases law and it is too complex. (21)

20- http://wiki.answers.com/Q/What_are_the_advantages_of_binding_precedent 21- http://sixthformlaw.info/01_modules/mod2/2_1_1_precedent_mechanics/08_precedent_advantages_dis.htm

Ali didi Sharia and law degree year two

11

نشاته و القانون تاريخ judicial precedent

Conclusion

This assignment is very important for me and us thus it helps us to learn more

information about judicial precedent and how important was judicial precedent in law.

I will make sure that this assignment is important, meaningful and useful for all

those who read this. And I make sure that by doing this assignment I got lots of improvement in

my knowledge and got lots of information about judicial precedent.

Judicial precedent is very useful and one of the most effective part of law.

However now a days we are unable to explain the best sue of it due to lack of information and

skill. So I should try to make the best use of it in a way that I would recognize as a academic

level.

The aim of this assignment is to explain judicial precedent and how its important

in our legal area and explain in its simplest way so that the reader can understand and use those

information accurately in their daily lives.

Ali didi Sharia and law degree year two

12

نشاته و القانون تاريخ judicial precedent

References

Books

1- English for law, Alison Riley, 1991, LLB, MacMillan publishers, page 15, 16.

2- History of judicial precedent, the lewis,T.Elis,1931, page, 425,426

Interviews

3- Interview with Supreme Court judge Abdulla saeed, 9th February 2011.

Websites

4- http://legal-dictionary.thefreedictionary.com/binding+precedents

5- http://nuweb.northumbria.ac.uk/bedemo/Sources_of_English_Law/page_10.htm6- http://www.lectlaw.com/def2/p069.htm

7- http://www.exampleessays.com/viewpaper/14277.html

8- http://www.oppapers.com/essays/What-Is-Binding-Precedent/634526

9- http://www.wisegeek.com/what-is-a-binding-precedent.htm10- http://law.jrank.org/pages/21573/precedent.html#ixzz1HPCstIn211- http://law.jrank.org/pages/21573/precedent.html12- http://en.wikipedia.org/wiki/Court_of_Appeal_of_England_and_Wales

13- http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/

EUROPEANCOURTOFJUSTICE.htm

14- http://kish.in/supreme-court-of-maldives/

15- http://interpretationofstatutes.blogspot.com/2010/10/precedent-overruling-reversing-

and.html#axzz1HiNXb7hZ

16- http://interpretationofstatutes.blogspot.com/2010/10/avoiding-precedent-

part02.html#axzz1HiNXb7hZ

17- http://www.vanuatu.usp.ac.fj/courses/LA313_Commercial_Law/Cases/

Milliangos_v_George_Frank.html

18- http://wiki.answers.com/Q/What_are_the_advantages_of_binding_precedent19- http://sixthformlaw.info/01_modules/mod2/2_1_1_precedent_mechanics/

08_precedent_advantages_dis.htm20- http://www.lawteacher.net/PDF/Judicial%20Precedent.pdf

Ali didi Sharia and law degree year two