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Chapter 8

LAWS 1000 Chapter Notes - Chapter 8: Precedent, Mens Rea

Course Code
LAWS 1000
Ozsu Faik

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Intro to legal studies Chapter 8
The law of precedent = stare decisis, is a self-imposed judicial rule that similar cases be decided
- Have to follow past decisions
- Essentially a formalization of the common sense use of past experience as a guide to
present conduct
- Value = continuity and certainty in the law
- “if there’s no reasonable guarantee that what is valid in law today will be valid tomorrow,
personal, economic, and political intercourse would grind to a halt”
Western tradition concept = ideals that laws apply equally and impartially to everyone
- has to be applied uniformly
- any deviation from the rule be justified on principle
- stare decisis preserves “the rule of law”
- Stare decisis minimizes (but doesn’t eliminate) the element of judicial discretion and
- Judge must decide what are relevant and similar aspects
- Although since situations change, rules must change also
- Appeal court judges have a duty to adapt the common law to the changing needs and
circumstances of our contemporary society
- Adaptability is still as important as consistency and reliability?
- Supposed to make law easier to understand
- Example: in 1982 the Canadian parliament abolished all criminal offenses at common
law and replace them with the criminal code, a document of comprehensive statute
- Don’t need to refer to so many precedents, they’re all written in the criminal code now
- Although well never be able to create statutes that would eliminate precedents altogether
because we cannot foresee every new situation and case that will arise so dissenting
opinions are still necessary
- Still exceptions, ex: mens rea
The doctrine of precedent
- Not everything said by a judge makes law, there are still rules
- Things like someone driving 80mph on a road and having an accident, driving 80mph can
be deemed negligent by the judge but that doesn’t create a precedent of driving 80mph on
that road negligent in all situations, the decision is unique to the details of each case
The doctrine of precedent is mostly concerned with questions of law. A decision on a point of
law constitutes a precedent that can bind other courts to follow it
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