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wat is a.....(this is for legal studies students) (1 Viewer)
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kini mini
Active Member
This thread should be in the Legal Studies forum 
I didn't do legal studies, but after 3 weeks of law at UNSW I think I can answer your questions....
1. A precedent is binding upon all courts lower than the one in which it was made. So a Supreme Court decision is binding on a district court. The number of judges is also significant, a decision by the Full Bench of the Supreme Court is binding on a single justice of that court.
2. The ratio decendii is the statement of reasons that the judge(s) considered significant in their decision. Clearly, it is important to identify the ratio in order to determine any precedent.
I didn't do legal studies, but after 3 weeks of law at UNSW I think I can answer your questions....
1. A precedent is binding upon all courts lower than the one in which it was made. So a Supreme Court decision is binding on a district court. The number of judges is also significant, a decision by the Full Bench of the Supreme Court is binding on a single justice of that court.
2. The ratio decendii is the statement of reasons that the judge(s) considered significant in their decision. Clearly, it is important to identify the ratio in order to determine any precedent.
Butterfly_Wings
Cornflake Girl
Well I did do legal studies, and I can confirm that Kini Mini is right.
Ratio decidendi is important, because a decision made by a judge sets a precedent which becomes part of common law, so future judges have to follow that precedent in their own decisions. But if a judge just made a ruling without stating why he is ruling in a certain way-future judges will not be able to follow the first judges reasoning. So the judge has to state the reasons he is sentencing the way he is...so if another case comes up with the same sort of factors in it, the second judge will have to follow the same reasoning as the first judge and rule in a similar way, because otherwise different judges could rule whatever they wanted. Precedents and the ratio decidendi prevents judges from making being creative or biased and making arbitrary decisions
Hmmm, that was a bit all over the place, I hope it made sense.
Ratio decidendi is important, because a decision made by a judge sets a precedent which becomes part of common law, so future judges have to follow that precedent in their own decisions. But if a judge just made a ruling without stating why he is ruling in a certain way-future judges will not be able to follow the first judges reasoning. So the judge has to state the reasons he is sentencing the way he is...so if another case comes up with the same sort of factors in it, the second judge will have to follow the same reasoning as the first judge and rule in a similar way, because otherwise different judges could rule whatever they wanted. Precedents and the ratio decidendi prevents judges from making being creative or biased and making arbitrary decisions
Hmmm, that was a bit all over the place, I hope it made sense.
kini mini
Active Member
Why thank youOriginally posted by Butterfly_Wings
Well I did do legal studies, and I can confirm that Kini Mini is right.
. Strangely, in my law class of 40 or so, only one person actually did legal studies at achool .Just to clear something up - judgements will not necessarily include a concise summary that allows us to identify the ratio easily. For instance, the High Court may rule on a case but three separate judgements may be wriiten by justices who might all have approved of one side of the case but for differing reasons.
The ratio decendi is only a statement of reasons - not a precedent in itself. I wouldn't want to make a comment about precedents inhibiting "judicial advocacy", rather I would stick to the central point that the doctrine of precedent aims to provide consistency in law
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MiuMiu
Somethin' special....
no one said what a persuasive precedent is.............its when a precedent from a lower court is followed by a higher one even though it doesn't have to follow it, thus the decision of the lower court has 'persuaded' the ruling in a higher one.
Can someone confirm what miu miu said about persuasive precedent, because I the explanation in my book is precedent set for courts of the same level. So does that mean persuasive precedent can carry into higher courts?
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binding precedent = MUST give same sentence
Persuasive means legally not binding, but the court might take it into account when judging; e.g. supreme court of nsw looks at a decision previously made by supreme court of victoria, not legally binding but they might wanna follow what they ended up sentencing anyway
Persuasive means legally not binding, but the court might take it into account when judging; e.g. supreme court of nsw looks at a decision previously made by supreme court of victoria, not legally binding but they might wanna follow what they ended up sentencing anyway