How does case law bind later courts, and how can judges avoid an inconvenient precedent?
Judicial precedent: the doctrine of stare decisis, ratio decidendi and obiter dicta, binding and persuasive precedent, the court hierarchy and the Practice Statement, and the ways of avoiding precedent (overruling, reversing and distinguishing).
An Eduqas A-Level Law guide to judicial precedent. Explains stare decisis, ratio and obiter, binding and persuasive precedent, the court hierarchy, the Practice Statement and how judges avoid precedent, with worked exam answers and the AO3 evaluation the paper rewards.
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What this dot point is asking
Eduqas Component 1 requires you to know judicial precedent: the doctrine of stare decisis, ratio decidendi and obiter dicta, binding and persuasive precedent, the court hierarchy and the Practice Statement, and the ways of avoiding precedent (overruling, reversing and distinguishing). The skill is to explain the doctrine and the devices precisely (AO1) and to evaluate it (AO3).
The answer
Stare decisis, ratio and obiter
Binding and persuasive precedent
A precedent is binding when it comes from a court higher in the hierarchy (or, in some courts, the same level) and the material facts are sufficiently similar. A precedent is persuasive (it may be followed but need not be) when it comes from a lower court, the Judicial Committee of the Privy Council, a dissenting judgment, an obiter statement, or a court in another country. Persuasive precedents have shaped the law (for example the Privy Council's approach to remoteness in The Wagon Mound).
The hierarchy and the Practice Statement
Avoiding precedent
Judges can avoid an inconvenient precedent. Overruling is where a higher court (or the Supreme Court using the Practice Statement) declares that a principle in an earlier case is wrong and states the correct law for the future. Reversing is where a higher court changes the decision of a lower court in the same case on appeal. Distinguishing is where a judge finds the material facts of the present case are different from the precedent, so it does not apply (Merritt v Merritt distinguished Balfour v Balfour because the couple had separated, making their agreement legally binding).
Examples in context
A strong answer reasons through the ratio, the hierarchy and the facts, rather than asserting that a case "must be followed".
Try this
Q1. Explain the difference between ratio decidendi and obiter dicta. [10 marks]
- What the marker wants. Precise AO1: the ratio decidendi is the legal reasoning essential to the decision and binds later courts; obiter dicta are remarks made by the way (for example hypothetical reasoning) which are persuasive only.
Q2. Analyse and evaluate the advantages and disadvantages of judicial precedent. [15 marks]
- Cue. An AO3 essay: explain stare decisis and the hierarchy; weigh certainty, consistency, efficiency and incremental development (Donoghue v Stevenson) against rigidity, slowness, complexity and the undemocratic nature of judge-made law, and conclude.
Exam-style practice questions
Practice questions written in the style of WJEC Eduqas exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
Eduqas Component 1 2022 (evaluation)15 marksAnalyse and evaluate the doctrine of judicial precedent. [an analysis/evaluation question in the style of Component 1, AO3]Show worked answer →
A mainly AO3 essay. Explain the doctrine, then weigh certainty against flexibility.
The doctrine. Stare decisis means the ratio decidendi of a higher court binds lower courts in cases with similar material facts. The hierarchy fixes who binds whom: the Supreme Court binds all lower courts and may depart from its own decisions (Practice Statement 1966); the Court of Appeal binds itself (Young v Bristol Aeroplane, with exceptions). Judges avoid precedent by overruling, reversing or distinguishing.
Evaluation. Advantages: certainty and predictability, consistency and fairness (like cases treated alike), efficiency (no need to re-argue settled law) and the ability to develop the law incrementally (for example the development of negligence from Donoghue v Stevenson). Disadvantages: rigidity (a bad precedent binds until overruled), the law can be slow to change, it is complex to find the ratio, and it is undemocratic (judges, not Parliament, make law). Devices like distinguishing can produce artificial distinctions.
A top answer evaluates the tension between certainty and flexibility with examples and concludes.
Eduqas Component 1 2021 (explain style)10 marksExplain how judges can avoid following a precedent. [an explain question in the style of Component 1, AO1]Show worked answer →
A mainly AO1 explain question. Set out the avoidance devices with an example of each.
Overruling: a higher court states that a legal principle in an earlier case (by a lower court, or its own under the Practice Statement) is wrong and replaces it (for example R v R abolishing the marital rape exemption; British Railways Board v Herrington). Reversing: a higher court changes the decision of a lower court in the same case on appeal. Distinguishing: a judge avoids an otherwise binding precedent by showing the material facts of the present case differ (Merritt v Merritt distinguished Balfour v Balfour).
A top answer explains overruling, reversing and distinguishing and gives an example of each, distinguishing them clearly.
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Sources & how we know this
- Eduqas A Level Law (A150) specification — WJEC Eduqas (2017)