How precedents are applied in court?

Answer 1

Precedents are a concept in common law (England and Wales and other English speaking countries - US etc) whereby a previous case if similar (in facts) is used to provide a consistent basis for decisions. Precedents are "binding" on a lower court that is to say they must be followed by a lower court if the decision was made by a higher court. They should also be followed by that court itself. The Latin term Stare Decis (to maintain what has already been decided) is used to define this.

When a judgment is handed down by a judge it is in two parts 1. the ratio decidendi (the reason why) and 2. the orbita dictum (said by the way). The ratio decidendi is binding. The orbita dictum can be cited as persuasive but is not binding. Similarly a lower courts decision can be persuasive to a higher court but is not binding. The general concepts of the above is referred to as "case law" and helps develop and modify the law. Lawyers spend a considerable amount of their effort in trying to show how the facts of the particular case differ or resemble other cases to make their points of law in front of the court.

In civil law precedent is not followed in the same way and Judges theoretically use the legislation alone to interpret the law, the argument being only the legislature has the authority to make law Judges are merely interpreting it. However there is a concept of Jurisprudence Constante which is similar but relies on a number of cases all of which reach the same conclusion. In common law by contrast a single case can be decisive and major changes brought about by a case are known as "landmark rulings".

To add to the answer above - the law in the UK is made up of primarily two sources: statute and precedent. Although judges are required to apply statute - interpretation of statute follows common law principles including precedents.

Answer 2

Precedents are a concept in common law (England and Wales and other English speaking countries - US etc) whereby a previous case if similar (in facts) is used to provide a consistent basis for decisions. Precedents are "binding" on a lower court that is to say they must be followed by a lower court if the decision was made by a higher court. They should also be followed by that court itself. The Latin term Stare Decis (to maintain what has already been decided) is used to define this.

When a judgment is handed down by a judge it is in two parts 1. the ratio decidendi (the reason why) and 2. the orbita dictum (said by the way). The ratio decidendi is binding. The orbita dictum can be cited as persuasive but is not binding. Similarly a lower courts decision can be persuasive to a higher court but is not binding. The general concepts of the above is referred to as "case law" and helps develop and modify the law. Lawyers spend a considerable amount of their effort in trying to show how the facts of the particular case differ or resemble other cases to make their points of law in front of the court.

In civil law precedent is not followed in the same way and Judges theoretically use the legislation alone to interpret the law, the argument being only the legislature has the authority to make law Judges are merely interpreting it. However there is a concept of Jurisprudence Constante which is similar but relies on a number of cases all of which reach the same conclusion. In common law by contrast a single case can be decisive and major changes brought about by a case are known as "landmark rulings".

To add to the answer above - the law in the UK is made up of primarily two sources: statute and precedent. Although judges are required to apply statute - interpretation of statute follows common law principles including precedents.