stare decisis Definition of STARE DECISIS : a doctrine or policy of following rules or principles laid down in previous judicial decisions

unless they contravene the ordinary principles of justice Origin of STARE DECISIS Latin, to stand by decided matters First Known Use: 1782

Definition Legal maxim that once a principle of law has been determined by an appellate court to be applicable to the facts of a case, it will be followed in the future cases involving substantially identical facts, unless overruled by the same or a higher court. It underlies the law doctrine of precedent. Latin for, to stand by things decided.

Definition of 'Stare Decisis' A Latin term meaning "to stand by that which is decided". Stare decisis is a legal principle which dictates that courts cannot disregard the standard. The court must uphold prior decisions. In essence, this legal principle dictates that once a law has been determined by the appellate court (which hears and determines appeals from the decisions of the trial courts) to be relevant to the facts of the case, future cases will follow the same principle of law if they involve considerably identical facts.

Read more: http://www.investopedia.com/terms/s/stare_decisis.asp#ixzz1h6HGbzAt STARE DECISIS AND SUPREME COURT

- By A.K. Awasthi Additional District Judge, Barabanki Stare decisis and Art. 141, Constitutin of India The principle of stare decisis is embedded in latin Maxim stare decisis et non quieta movere, firmly entrenched in British system of doctrine of binding proceedent and embodied in Article 141 of the Consitution of India, in short Constitutin if provides that the law declared by Supreme Court shall be binding on all courts within the territory of India. The expressions binding and on all courts catch our eyes. It is to be discerned as to what is binding and determined whether the Supreme Court is bound by its own decisions. Meaning of Stare decisis Stare decisis means to stand by decided cases. Wh have hierarchy of courts. The Supreme Court is at the top of pyramid. It decides cases with a seal of finality. The decision is an authority for what it actually decides. What is of essence in a decision is it ratio, and not every observation found therein,l nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent1.

Law declared binding It is aw declared that is binding. The decision not express, nor founded on reasons, nor proceeding on consideration of the issue cannot be deemed as law declared2. Lis It is basal to common law doctrine of binding precedent that there should be a lis for adjudication before the Court, a set of material facts and the Judge has to apply the reasoning to justify decision after putting the facts in a legal pigeon-hold. Indeterminacy of precedent authority must not sway away the mind of a Judge. A case is an authority for what it decides. A decision cannot be relied upon in support of a proposition that it did not decide 3.

Res Judicata and Ratio decidendi A decision on a matter in issue alone is res judicata; the reason for the decision is not res judicata. It may resolve a controversy inter partes and may also formulate enunciation of law. The former is res judicata, while the latter is the reason for decision i.e., ratio decidendi4. Ratio decidendi and Obiter dicta It is ratio decidendi that is binding, and not casual remarks, something said by the way, statements on hypothetical fact-situations, or problems, which are passed for as obiter dicta. The obiter dicta is the incidental question which may arise, indirectlly connected with the main questions, for consideration. Normally even an obiter dictum of Supreme Court is expected to be obeyed and followed5. The observations on unreal questions decided in personam are not binding as precedent6. STARE DECISIS A basic principle of the law whereby once a decision (a precedent) on a certain set of facts has been made, another Court of the same rank or lower, must apply that decision in cases presenting the same set of facts. The precedent becomes binding and must be followed by courts of like rank.

Background Stare decisis is a common-law concept derived from the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." In common law legal systems, the judiciary plays an important role in creating law and interpreting legislative enactments. Under the principal of stare decisis lower courts must follow the decisions of their supervising courts as long as the two cases are factually identical. If the lower court is unable to distinguish their case from a controlling decision, the case holding is said to be binding on the lower courts. Lawyers often take great pains to separate the holding (which is binding on lower courts) from so-called dicta (language in the decision which is not binding on lower courts).

Proponents of stare decisis argue that the system leads to greater predictability. For others, stare decisis arguably leads to the perpetuation of irrational or wrongly decided decisions. In the United States it has been said that judges use stare decisis when it follows the outcome of the case they wish to see. The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. ... Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. ... At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed. [1] Strict Stare Decisis Strict stare decisis refer to the idea that courts should always follow their own decisions and decisions of higher courts, regardless of whether those decisions are sound in judgment. The concept of strict stare decisis has generally been rejected by courts around the globe. Horizontal Stare Decisis Horizontal stare decisis refers to the idea that a court should be bound by its own decisions. Vertical Stare Decisis Verticla stare decisis refers to the concept that lower courts are bound by the decisions of higher courts. Stare Decisis in Civil Law Jurisdictions In comparison, civil law judges are generally not constrained by the decisions of higher courts. However in practice, the differences are often oversold. As a practical matter, both civil law and common law judges use horizontal and vertical cases to inform their own decisions. [2]

9a. LEGAL DEFINITION OF STARE DECISIS LEGAL DEFINITION OF STARE DECISIS LATIN -MEANING

1. "to stand by that which is decided." The principal that the precedent decisions are to be followed by the courts.

2.To abide or adhere to decided cases.

The Meaning of "Ratio Decidendi" The Meaning of "Ratio Decidendi" By Brian Madigan LL.B.

The latin expression "ratio decidendi" is one of the most important phrases used in law. It stands for the "legal principle", "the reason behind the decision" or "the rationale of the case". In essence, this is the important legal maxim drawn from the case. It is the essential part of the decision. Less important matters, or matters which are not material are unnecessary. They are non-essential, and often referred to as "obiter dicta" or "obiter" for short. The ratio decidendi: represents the essential elements of the case recites the fundamental issues in the case requires a conclusion based of the actual facts in the case is necessary to the logic of the decision formulates the legal principles decided in the case

In short, it is the "holding" in a case, or the decision that the court held in a particular case. The binding part of the case must be part of the ratio decidendi. The legal doctrine of stare decisis requires lower courts to follow the principles of the law enunciated by the higher courts. If the fact or principle is part of the ratio decidendi, then it is binding upon lower courts. If it is merely obiter dicta, then it is not binding. Fundamentally, one of the roles of the judiciary is to determine in every case that which is part of the ratio, and that which is obiter. This is also the task of lawyers in subsequent cases. A lawyer confronted with a difficult decision pronounced in a superior court will need to distinguish the case, from the one at bar. One of the opportunities is to argue that the superior court decision contained obiter on the point in issue.

It is also noteworthy that obiter of a very high court, or leading jurist is quite persuasive, and sometimes more significant that the ratio decidendi of another lower court. Litigation often revolves around the distinction between ratio and obiter, and stare decisis hangs in the balance. This is one of the most difficult challenges in the adversarial judicial system. If it weren't, there would be no need for lawyers.

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage 905-796-8888 www.OntarioRealEstateSource.com Innovators Realty