Q. 1 Explain the meaning and operation of the doctrine of precedent in relation to: (a) the English, or other common law, legal system; (6 marks) (b) ONE of the following:
(i) a civil law system;
OR
(ii) a Sharia law system.
A.
(a) Precedent in the English common Law
The doctrine of binding precedent, or stare decisis, lies at the heart of the English legal system. The doctrine refers to the fact that within the hierarchical structure of the English courts, a decision of a higher court will be binding on a court lower than it in that hierarchy. When judges try cases they will check to see if a similar situation has come before a court previously. If the precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should normally follow the rule of law established in the earlier case. It is important to establish that it is not the actual decision in a case that sets the precedent; that is set by the rule of law on which the decision is founded. This rule, which is an abstraction from the facts of the case, is known as the ratio decidendi of the case. Any statement of law that is not an essential part of the ratio decidendi is, strictly speaking, superfluous; and any such statement is referred to as obiter dictum, i.e. said by the way. Although obiter dicta statements do not form part of the binding precedent they are persuasive authority and can be taken into consideration in later cases. The main mechanisms through which judges alter or avoid precedents are: (i) Overruling, which is the procedure whereby a court higher up in the hierarchy sets aside a legal ruling established in a previous case. (ii) Distinguishing, on the other hand, occurs when a later court regards the facts of the case before it as significantly different from the facts of a cited precedent. Consequently it will not be bound to follow that precedent. Judges use the device of distinguishing where, for some reason, they are unwilling to follow a particular precedent. There are numerous perceived advantages of the doctrine of stare decisis, amongst which are: (i) Time saving. In respect of potential litigants it saves them money in court expenses because they can apply to their solicitor/barrister for guidance as to how their particular case is likely to be decided in the light of previous cases on the same or similar points. (ii) Certainty. Once the legal rule has been established in one case, individuals can act with regard to that rule relatively secu...