Please enable JavaScript.
Coggle requires JavaScript to display documents.
Ratio Decidendi and Obiter Dicta - Coggle Diagram
Ratio Decidendi and Obiter Dicta
Judicial precedent
The source of law where past decisions of the judges create law for future judges to follow.
Legal reasons for past decisions are recorded in judgements.
STARE DECIS (stand by what has been decided)
Like cases are decided. - Use the same reasoning for similar cases.
Higher courts bind lower courts - Decision of higher courts are binding lower courts.
Obiter Dicta
Other things said
Persuasive precedent
This means material judges have used in their wider comments about a case. For example a judge may comment on issues that may have led to a different outcome, if the facts of the case had been different.
Judgement that is 'said in passing'.
Precedent that is not in any way binding - ability to provide a persuasive precedent.
Cases
R v Howe and Bannister 1982 - Is duress available as a defence to murder. No defence - for murder regardless of the defendants susceptibility to duress.
R v Gotts 1982 - was duress available under the charge of attempted murder. - Defence of duress not available - law regarded the sanctity of life and felt its protection was of paramount importance.
R v Valderrame - Vega 1985 - If there had not been a threat of death, then the other threats in this case would not bee enough on which to base a defence of duress.
Ratio Decideni
Reasons for binding
Binding precedent
Is the only part that can form precedent
In order of the doctrine of Judicial precent to work, it is necessary to be able to determine what a point of law is.
In delivering a judgement the judge will give there reason for the decision.
Forms legal principle which is binding precedent - it must be followed in future cases that are similar to it.
Follow in later cases that exhibit similar characteristics.
The part of the judgement where to the judge explains the principles of law in the context of the decision he/she makes.
Cases
Donoghue v Steventon 1932 - Landmark decisions in English Tort law. Foundations for the modern law of negligence establishing the general principles of duty care.
Carill v Carbolic smoke ball co. Ltd 1892 - Held an advertisement containing certain terms to get a reward, constituted a binding unilateral offer that could be accepted by anyone who performed its terms. Frequently discusses as an introductory case and may often be the first legal case a law student studies in the law of contract.
R v Dudley and Stephens 1884 - Established throughout the common law world that necessity is not a defence to a charge of murder.