How Judicial Precedent Works

If the judge sees that there is a similar earlier court decision he may do any of the following:

Follow. If the facts are sufficiently similar to those of the earlier case, the judge follows the precedent and applies the law in the same way to produce a decision.

Distinguish. If the facts of the case before the judge are different from those of the earlier one, the judge distinguishes the two cases and need not follow the earlier one.

Overrule. Where the earlier decision was made in a lower court, the judge can overrule that earlier decision if he disagrees with the lower court’s interpretation of the law. The earlier decision remains the same but will not be followed.

Reverse. In case of appealing the decision of a lower court to a higher one, the higher court may change it if the judge feels that the lower court has wrongly interpreted the law. So when a decision is reversed, the higher court usually also overrules the lower court’s statement of the law.

In practice the process is rather more complicated than this, since decisions are usually made on the basis of several previous cases, not one.

What are the advantages and disadvantages of case law?

TASK 31. (a) Read the text below and give a definition of a ‘judgment’: