Hi, my name's Matt Firth and welcome to TransLegal's lesson of the week.
Today I'll be talking about the role of authority in judicial decision making.
There are two types of authority that will be considered by judges when coming to a judgment in a case. The first type of authority is binding authority, and then we have persuasive authority.
There are two sources of binding authority. The ratio decidendi which is more commonly known as the ratio in British English, Americans refer to the rationale of a case, and statutes. The ratio of a case is the principle, the ground, the reason for a decision in a case. And this is what forms a precedent. And a precedent then is the ruling which has to be applied in future cases where something comes up to a court which covers similar facts, similar legal issues and generally a court will be bound by itself – there will be certain exceptions under which a court can overrule one of its own judgments, generally it binds itself and also all lower courts.
The second source of binding authority is statutes, or legislation – so written law. Law that is enacted by the legislative branch of government, that is by the legislature.
Binding authority is not the only form of authority that will be considered by judges. They can also consider persuasive authority. Persuasive authority, as the name implies, can help convince or persuade or can help a judge reach a decision, but he's not actually bound to follow those authorities. And these are the most common examples. I mentioned ratio of the case earlier on. The ratio being the ruling that is applied as precedent. Anything else that a judge says in a case -- in a judgment -- that isn't ratio is said in dicta or obiter dicta. More commonly we talk about what a judge says in dicta and these are the kinds of things, the other things that a judge says in a judgment. He might consider what the law would have been had the facts been slightly different, for example.
Dissenting judgments can also be considered. And a dissenting judgment is a judgment that is given by a judge who does not agree with the majority opinion. And sometimes they say things that could be considered by judges in future cases. Also foreign courts, judgments in other jurisdictions, could be considered. Let's say some issue comes up that hasn't actually been considered by a court in that particular jurisdiction, they could look at how other jurisdictions deal with that issue.
And finally, another form of persuasive authority would be other legal writings, especially authoritative legal writings: maybe an interesting article or a well-written article about a new piece of legislation that's been published in a legal journal.
These are the different types of authority. Binding authority and persuasive authority.