Judicial Precedent in A Level Law: How Judges Make Law (With Key Cases)
Introduction: Why Judicial Precedent Is Central to A Level Law
If there is one topic that defines the study of English law, it is judicial precedent. The doctrine shapes how courts operate, how legal principles evolve, and how certainty is maintained in the legal system. For A Level Law students, understanding judicial precedent is not optional – it is the foundation on which virtually every other topic is built.
At alevellawteacher.com/, Owais Mirchawala teaches judicial precedent as a living, breathing mechanism rather than a static set of rules. This article gives you a comprehensive overview that will serve you well in both Paper 1 and Paper 2.
What Is Judicial Precedent?
Judicial precedent, also known as case law, is the system by which judges follow the decisions made in previous cases when deciding new ones. This principle is encapsulated in the Latin phrase stare decisis, which translates to \’stand by what has been decided.\’ The effect is that similar cases are treated consistently, which promotes fairness and predictability in the legal system.
The system operates through a strict hierarchy of courts. Decisions made by higher courts are binding on lower courts. The Supreme Court sits at the top of this hierarchy, followed by the Court of Appeal, the High Court, and then the lower courts. A decision from the Supreme Court on a point of law must be followed by every court beneath it unless it is later overruled or distinguished.
Ratio Decidendi and Obiter Dicta
Every judgment contains two critical elements that A Level Law students must understand. The ratio decidendi is the legal reasoning behind the decision. It is the part of the judgment that is binding on future courts. For example, in Donoghue v Stevenson (1932), the ratio was that a manufacturer owes a duty of care to the ultimate consumer of their product. This principle became the foundation of modern negligence law.
The obiter dicta, by contrast, are remarks made by the judge that are not essential to the decision. These are persuasive rather than binding, meaning future courts may consider them but are not obligated to follow them. In R v Howe (1987), the House of Lords stated obiter that duress should never be a defence to attempted murder.
How Precedent Is Avoided
The rigid nature of precedent could lead to unjust outcomes if there were no flexibility built into the system. Courts use several techniques to avoid following a precedent they consider inappropriate.
Distinguishing is the most common method. A judge identifies material differences between the facts of the current case and the precedent case, allowing them to reach a different conclusion. In Balfour v Balfour (1919), an agreement between spouses was held not to be a binding contract. However, in Merritt v Merritt (1970), the court distinguished the case because the couple were separated.
Overruling occurs when a higher court decides that a previous decision was wrong in law. The Practice Statement of 1966 gave the Supreme Court (then the House of Lords) the power to overrule its own previous decisions. The first significant use of this was in British Railways Board v Herrington (1972), which overruled Addie v Dumbreck (1929) on the duty of care owed to trespassers.
Reversing happens when a higher court overturns the decision of a lower court in the same case on appeal. This is distinct from overruling because it involves the same set of facts and the same parties.
Advantages and Disadvantages of Judicial Precedent
The chief advantage of judicial precedent is certainty. Lawyers can advise their clients with reasonable confidence about the likely outcome of a case because similar facts will produce similar results. Precedent also promotes consistency and fairness, as like cases are treated alike. Furthermore, the system allows the law to develop incrementally through real-life cases.
However, there are significant drawbacks. The sheer volume of reported cases makes it difficult for lawyers and judges to locate all relevant precedents. The system can also be rigid, especially in lower courts that are bound by decisions they may consider outdated or unjust. Additionally, the distinction between ratio decidendi and obiter dicta is not always clear, which can lead to uncertainty about which part of a judgment is actually binding.
Exam Technique: Scoring Top Marks
Owais Mirchawala advises his students at alevellawteacher.com/ to always use case authorities to support their arguments. A statement like 'precedent promotes certainty' is weak without a case example. A statement like 'precedent promotes certainty, as demonstrated by the consistent application of the neighbour principle from Donoghue v Stevenson\’ is far more convincing.
When evaluating judicial precedent in an essay, ensure you present both sides of the argument and reach a reasoned conclusion. Examiners reward students who can weigh up the advantages and disadvantages and offer their own informed opinion on the effectiveness of the doctrine.