The document discusses the doctrine of judicial precedent in common law systems. It makes three key points: 1) Judges look to precedents from earlier similar cases to help decide current cases, promoting consistency and predictability in the law. This doctrine is called stare decisis. 2) Precedents are either binding, meaning judges must follow the legal rules or principles set in earlier cases, or persuasive, where judges may consider but are not bound by the logic or reasoning of past cases. 3) The ratio decidendi, or legal rule that was essential to and led to the outcome of a past case, is what makes a precedent binding. Dicta, or non-essential statements of law, are

1. LEGAL RESEARCH &
WRITING
THE COMMON LAW PROCESS

2. THE DOCTRINE OF JUDICIAL PRECEDENT
 The doctrine of judicial precedent is fundamental to the operation of the common
law.
 In practise it means that a judge deciding a particular case will look for a
precedent- a decision in an earlier similar case- to help them reach their decision
in the case before them.
 An important justification for following precedent is the idea of Justice:
 i. Consistency- is an essential element in doing justice: similar cases coming before
the courts for determination should be treated similarly

3. JUDICIAL PRECEDENT
 Certainty and predictability: If judges follow the reasoning and decisions of their
judicial colleagues, then common law becomes certain and predictable.
 People can organize affairs knowing what the law is and avoid continually
litigating legal points.
 It is both fair and efficient to follow the common law.

4. STARE DECISIS
 The Doctrine of Stare Decisis- to stand by decisions already made”.
 Courts are bound to follow earlier decision even if a judge disapproves of an
earlier precedent.
 i. To ensure fairness throught consistency.
 Ii. To provide predictability in the law and thus reduce the need for litigation.
 iii. Legal advisers can advise client with confidence about what the legal principles
are that a judge would apply in deciding a dispute in court and what the outcome
would be.

5. STARE DECISIS
 The legal rule established in a precedent will continue to be applied in subsequent
cases until:
 i. Another court decides that the case was incorrectly decided;
 Ii. Or for some other reason cannot be allowed to stand;
 Iii. Until a court higher up in the hierarchy overturns the decision;
 Iv. Until parliament decides to change the law by passing a new Act of Parliament
that overrules or alters the rule laid down by the courts,

6. BINDING AND PERSUASIVE PRECEDENT

7. VERTICAL AND HORIZONTAL
PRECEDENTS

8. RATIO DECIDENDI
 Decisions normally comprise material about:
 i. The facts of the case;
 Ii. Information about the arguments made in court;
 Iii. The decision and the reasons for the decision. i.e the reasoning that leads to the
decision.
 The material facts of the case and the application of legal principles to those facts that
leads to the decision- are essential pieces of information important for the operation of
the system of binding precedent.
 The ratio decidendi is essentially the legal rule that leads to the decision and it is this
legal rule that is binding on a later judge.
 MZEE V TAJIRI (ASSUMPTION OF THE RISK)

9. RATIO DECIDENDI
 Sir Rupert Cross- Precedent in English Law, 1977
The ratio decidendi of a case is any rule of law expressly or impliedly treated by the
judge as a necessary step in reaching his conclusion, having regard to the line of
reasoning adopted by him…

10. SCOPE OF HOLDINGS
 KIMATHI V JERICO AUTOWORKS
 MZEE V TAJIRI – HYPOTHETICAL EXAMPLES; Assumption of the risk defence in the
law of Tort
 Narrow and broad holdings

11. RATIO DECIDENDI V OBITER DICTUM
 The doctrine of stare decisis does not apply to dicta.
 Statements of law not essential to the outcome of the case are dicta.
 Statements about how the law might apply to hypothetical facts can constitute
dicta as well.
 Distinguish between holdings and dicta because only an opinion’s holding/ ratio
decidendi is binding on future courts.
 A judge in a future case may choose to follow dicta but is not bound to do so.
 A lower court will always give the dicta of a higher court great deference.

12. MATERIAL FACTS
 Facts that are important for the decision.
 Donoghue v Stevenson [1932] AC 562

13. AVOIDING PRECEDENT
 Distinguishing
 Reversal on appeal
 Decision has been overruled by a higher court dealing with indistinguishable
material facts, either expressly overrules the earlier case, or produces a ratio which
is inconsistent with that of the earlier case.
 Decision is per incuriam
 Express or implied overruling by Parliament

14. DO JUDGES MAKE OR DECLARE LAW?
 Sir William Blackstone- the declaratory theory
 Lord Simonds, Midlans Sillicone Ltd v Scruttons Ltd [1962] AC 446
 Lord Reid. 1972 Memoires, The Judge the Law maker
 LJ Etherton, 2009
 Lord Bingham, essay- The Judge as Lawmaker (1997)
 Lord Dyson, 2014,Power of the Judiciary