Exercise 11

Work with a random selection of statements below to create a text that concerns the explanation of the A) common law major principle and B) the way judges rule according to this principle.

Put the statements in logical order. Then use logical connectors to join the ideas.

A)

1. Stare decisis is essentially the doctrine of precedent.

2. Stare decisis is Latin for "to stand by things decided."

3. Once that precedent is established, all future courts will use it to decide similar disputes.

4. The doctrine of judicial precedent is based on the principle of stare decisis, this means that like cases should be treated alike.

5. The general rule is that all courts are bound to follow decisions made by courts higher than themselves in the hierarchy and appellate courts are usually bound by their own previous decisions.

6. Courts refer to stare decisis when an issue has been previously brought to the court and a ruling already issued.

7. Decisions made by appellate courts are binding on lower courts in the same jurisdiction, and they are binding in future decisions in the same appellate court.

8. The decisions in lower courts are considered non binding sources of law, which means the court consults these in deciding a case, but does not have to apply those facts when reaching a decision.

9. Where there is no previous judicial decision on a point of law before the court then the decision made in that case on that point of law will be original precedent.

B)

1. If the court decides that the current dispute is fundamentally different from all other previous cases, judges have the authority to make law by establishing a precedent.

2. Judges select particular precedents through legal reasoning.

3. When a case comes up for decision, a judge is supposed to search for similar cases decided in the past, note the basis of the past decisions, and convert the decisions into a more general principle of law (often called a rule, standard, or test) that can be applied to the current case.

4. If there is a Supreme Court or other higher-court ruling on that territory that interprets the law or deals with a similar dispute, the judge is obligated to make a ruling that is consistent with this precedent.

5. If an absolutely new issue arises and there is no precedent to follow, the judge must create a new but it has to follow the principles laid down in common law.

6. Judges also consider common law precedents from other jurisdictions and countries.

Development Exercise 12

The text below illustrates how precedent works. Read the text and then explain this principle in your own words.

What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the course of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.

The reason of deciding of a case can be defined as the material facts of the case plus the decision thereon. Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X (e.g. judgment for the plaintiff, or judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy.