In my last blog post, we looked at how precedents are set, as well as what the situation is when things are said obiter dicta, or along the way. In this week’s blog post, we will be continuing with the same topic, but instead looking at how precedents can be overruled by the courts if necessary or if the precedent set no longer seems to be correct. Alternatively, cases may sometimes be distinguished, meaning that the facts of the case are different enough that it doesn’t have to follow the established precedent, even if the two cases seem similar at first glance.
First of all, we will quickly go over what precedents are and how they are set. They come from the judgments in decided cases and are made by the judges in their speeches for each case. However, it is important to note the difference between the ratio decidendi and things said obiter dicta, as only the ratio decidendi actually sets a binding precedent for other courts to follow. Things said obiter dicta may be persuasive and are often a good starting point in a new case with unique facts, but they do not bind the courts like the ratio decidendi.
The ratio decidendi means the reason for deciding, and is exactly this. When a judge is giving their judgment, they will also explain why they decided this and on what grounds. Essentially, it is their reasoning for the verdict. Take care not to confuse it with the actual verdict, such as guilty or liable; the ratio decidendi is just the explanation for how this was reached. It will often include the rule of law that was used by the judge to reach their conclusion, as well as an illustration of how this applies to the facts of that specific case.
Obiter dictum (plural obiter dicta) is Latin for “a word said while travelling” and means things said in passing when the judge is delivering their judgment. It is not always easy to distinguish between the ratio decidendi and obiter dicta statements, as they are all in the same speech. To clarify, the ratio decidendi relates directly to the facts of the case, whereas obiter dicta statements are not essential to the case and often consider what the outcome would be in alternative scenarios.
Overruling Precedents
Overruling occurs when a judge looks at a precedent that was previously set and decides to depart from it, therefore overruling the earlier precedent. To do this, it must be a court that is higher in the hierarchy than the one that set the first precedent. This method is quite rare and noteworthy when it does happen, as a decision to overrule a previous precedent doesn’t just affect the current case being decided – it also throws out the old precedent and replaces it with the new ruling. This means that the law is different going forward and judges must now follow the new precedent. Bear in mind that this is not the same as a higher court simply reversing a previous decision from a lower court.
One reason that precedents being overruled is so rare is that the longer a precedent has been around, the more it becomes ingrained into law and the more reluctant judges are to change the status quo. Therefore, despite the fact the precedents become increasingly out-of-date and misaligned with modern views, they may still be followed. This helps to keep the law consistent, as overruling a precedent applies retrospectively, meaning that the old precedent was never law. This has the potential to give criminal liability to historical events judged legal at the time, leaving a lack of certainty in the law.
Another reason that overruling is uncommon is that judges do not like to interfere too much with law-making, as this is supposed to be Parliament’s role in the separation of powers. Overruling precedents can be seen as giving too much power to the judiciary, especially with the possibility of retrospective application. However, judges will still overrule precedents where it is necessary to avoid a result that would not be considered right or acceptable by modern standards and opinions.
Distinguishing Precedents
The other method of departing from a precedent is to distinguish the current case from it. This is done by looking at the ratio decidendi of the previous case and seeing whether the facts of the case match the previous one exactly. If not, the judges can choose to declare the case sufficiently different to be distinguished and a different outcome reached.
Distinguishing is much more common than overruling, as it does not reverse the previous law, just adds a new precedent to the existing common law. Judges will often make distinctions for very slight differences to avoid following an undesirable precedent, while still leaving it intact.
Wrapping Up
I hope that this helps you to understand how precedents work and the ways in which courts can depart from them. In my next blog post, we will be looking at the history of law reports in England and Wales, so come back in two weeks for that!
Want help proofreading your work? Contact Carmine Proofreading for a friendly, professional service from a qualified proofreader.
Email: CarmineProofreading@gmail.com
Twitter: https://twitter.com/CarmineProofed
Carmine Proofreading 