Chapter 13
Precedent
Introduction
Ratio Decidendi
Stare Decisis
Precedent as Policy
Introduction
Precedent
Precedent is used for interpreting law –
a court can interpret a provision in
common law or statute law by applying a precedent that has interpreted the
provision or a similar provision on a previous occasion. Precedent is also the
reason that a common law rule, once made, is followed in subsequent cases.
In the first case a court formulates the rule. In subsequent cases other courts
follow the legal rule in the precedent, although at the same time they may refine
and interpret the legal rule.
Nature of Precedent
Literally, precedent is something
that precedes or has gone before. This
"something" is a version of the law (when a court is making law) or a meaning
of a provision (when a court is interpreting law). Precedent, however, not only
presents a version, it is also either a binding direction or persuasive suggestion
to adopt that version. Precedent has two components, ratio decidendi and
stare decisis.
Ratio Decidendi
Ratio decidendi means literally the reason for the decision. The background
for understanding ratio decidendi is that parties may disagree about questions
of law –
whether and how a court should make a new common law rule,
whether and how a court should amend an established common law rule and
how a court should interpret a rule of common law or statute. The ratio
decidendi is the rule that the court formulates to decide this issue. Thus rule
may be in positive or negative form. (i) It is strongest and more visible when it
is positive. This entails a court making a new common law rule in a certain
form, amending an existing common law rule in a certain way or interpreting a
rule in statute or common law by saying that one meaning not some other
meaning is the correct legal meaning of an ambiguous provision. Thus the rule
consists of the entire common law rule, the amendment to the
common law
rule or the interpretation. (ii) In negative form the rule consists of a decision
that there should not be a new common law rule, or a decision that the
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