Proposition 2.2 is the converse of Proposition 2.1. Higher courts can overrule decisions of
lower courts, that is courts beneath then in the hierarchy.
Proposition 3: Non Binding Precedents
Courts are not bound by decisions of two types of courts:
(i) Major common law courts outside their jurisdiction
(ii) Courts beneath them in the hierarchy.
Even though courts are not technically bound by decisions of these courts, they attach some
persuasive value to their decision.
391
Generally, the better the reasoning in the decision the
more value the court will attach to it.
Figure 13.2 Rules of Stare Decisis
This requirement of a court to follow or to consider an earlier decision strictly
applies only to the ratio decidendi and not to obiter dictum. This is the point to
the distinction between ratio decidendi and obiter dictum. Stare decisis
requires a court to treat only ratio and not obiter as precedent.
Common Law
Introduction
Stare decisis is utilised in three functions with common law. These consist of
preserving common law, amending common law and interpreting common law.
Preserving Common Law
Once a common law rule is made the rules of stare decisis, which are part of
precedent, give it binding force. Precedent does for a common law rule what
supremacy of the legislature does for statutes. Precedent says that once a rule
has been laid down it must be followed. Precedent is thus the preservative that
makes common law permanent. It provides a core of consistency and
constancy to judge made law. In doing so it also keeps in place the policy
which underlies the rule.
While precedent operates to turn decisions of courts into rules of common
law, its function here is almost taken for granted because litigants generally do
not challenge the existence of a rule. Typically questions of law will arise over
interpretation of common law and statutes so it is in these two spheres where
precedent is actively used as a source of reasoning. Except in those rare (but
now unknown) circumstances when a party asks a court to abolish an
390
To understand this proposition better consider the special form of
ambiguity that applies to common law, ambiguity of competing versions. This is
explained in Chapter 10 Classifying Meanings.
391
For discussion of use of United Sates precedents by the High Court of
Australia see Von Nessen (1993); for deference to the Privy Council by Australian
courts see Geddes (1978).
 |
 |
 |