Judicial Precedent Basically Means The Process With Essay

Length: 6 pages Sources: 10 Subject: Business - Law Type: Essay Paper: #93370070 Related Topics: Legislative Process, Persuasive, Miscellaneous, Due Process
Excerpt from Essay :

Judicial precedent basically means the process with which judges follow previously decided cases whose fact are of adequate similarity. As a practice of the court, the doctrine of judicial precedent provides direction to judges when they are applying case precedents. Moreover, this practice provides clarity, certainty and consistency in the application of case precedents by judges. In practice, judicial precedent is used as a source for future decision making since it's considered as a rule for judges to decide on like cases in a similar manner. As a result, the doctrine of judicial precedent provides predictability in the law (Tufal, n.d.).

Principles of Judicial Precedent:

As a practice in the courts, the doctrine of judicial precedent involves two major principles which are

Stare Decisis:

As the first principle of judicial precedent, stare decisis means to stand by what is decided implying that lower courts are bound to follow the legal principles that were established by superior courts in previous cases ("Judicial Precedent," n.d.). The principle is derived from a Latin phrase that also means not to interfere with that which is already settled. Generally, this principle requires that all future cases with the material facts be applied similarly to the previous manner of a similar case.

In addition to lower courts being bound by the legal principles of superior courts in previous cases of similar material facts, appellate courts also need to follow their own previous decisions under this principle of judicial precedent. For instance, while the high court adheres to decisions of the Court of Appeal which in turn follows decisions of the House of Lords; the Court of Appeal must also follow its own past decisions. In the use of this principle, the judge states the facts of a case, the applicable law and then his/her judgment when deciding on a particular case.

Ratio Decidendi:

The second principle in the doctrine of judicial precedent is ratio decidendi which means the reason for the decision. In delivering his/her judgment in a case, the judge states the facts proven by the evidence, applies the law to those facts and makes a decision for which he/she gives the reason. The reason for the decision becomes the binding part of an earlier decision that must be followed by judges in subsequent cases.

This principle not only contains the reason for the decision but it also includes an obiter dictum which means a saying by the way. Unlike the reason for the decision, an obiter dictum is not binding in subsequent cases because it's not strictly relevant to the particular issue in the previous case. Through the obiter dictum, the judge may proceed to speculate his/her probable decision if the facts of the case are not similar to the previous case. As opposed to being the binding part of a judicial decision, an obiter dictum may be of persuasive authority in subsequent cases. In cases where there are no existing or previous precedents, the court declares the law and the particular case becomes an original precedent ("Judicial Precedent," 2007).

Theories Regarding Judicial Precedent:

There are two main theories regarding judicial precedent which form different attitudes towards this doctrine and its practice in courts. The first of the two theories is the realistic theory which states that all principles must originate from somewhere. In this case, the removal of old principles is basically considered as the creation of new law ("Precedent in Theory," n.d.).

The first one is the declaratory theory which outlines that common law does not change and is therefore considered as static law. In the declaratory theory, the law is simply re-stated and not added to in every single case and the judges declare the law on the basis of previous decisions. The theory also states that law is not created but is in existence within the judges except in cases where previous decisions are apparently contrary to reason and even divine law. However, in such cases, judges do not attempt to make a new law but rather defend the old law from misrepresentation. If a previous decision is found to be manifestly absurd or unjust, it is declared that it wasn't law rather than a bad law. This declaration means that the law is not the established custom of the realm because it has been erroneously determined.

Actually, since the beginning of the 19th Century, judges have usually maintained...


Therefore, while the province of the statesman discusses the law, the legislature in turn determines what is suitable for the public good and provides proper enactments for it. Judges primarily expound the law from what is written from the statutes, unwritten or common law from previous decisions, text-writers of recognized authority and principles that are clearly derived from sound reasoning and just inference. They do not merely speculate on what is suitable or their opinions for the best of the community. Therefore, the probability of overruling or making new precedents by judges is dependent on the degree with which it would essentially change the law, need for justice and logic instead of mere solutions.

Types of Judicial Precedents:

In the application of the doctrine of judicial precedent, precedents can either be original, persuasive or binding. The three types of precedents have separate set of rules but they all contribute to the general idea of stare decisis as explained below:

Original Precedent:

An original precedent occurs in situations where a judge has to determine on a point of law that has never been determined before (Lewis, n.d.). While the judges may not have rules that they are subject to follow, they may decide to use other cases that are close in principle. These judges may also tackle similar issues in order to guide their decision when using cases with close principles. As a result, the resultant new or original precedent from such cases known as reasoning by analogy.

Persuasive Precedent:

A persuasive precedent is not a binding authority to judicial decision but may be considered when the judge feels it's relevant to the particular case. In this case, an obiter dictum and dissenting judgment may be used as the key factors in persuasive precedent. Persuasive precedents are not binding because the doctrine of precedent requires people to be treated in a similar way in like cases and the unbearable bulk of persuasive precedents.

Binding Precedent:

This is a precedent that has to be applied when the facts of a case are adequately similar to that of a previous case. Judges are required to follow these binding precedents even if they do not agree with the decision of the previous case. However, the binding precedent is usually applied if the previous case was determined in a higher court or occasionally the same court. In situations where there are no direct precedents relating to the particular case before the court, the court is at liberty to determine the matter ("Judicial Precedent," 2011). For a precedent to be binding, it must be within the ratio decidendi as well as being a decision made by a higher court or the same court in certain cases.

Methods of Avoiding Precedent:

Judicial precedent is one of the important sources of English law as a new precedent that creates and applies a new rule. There are several methods of avoiding a judicial precedent even though courts have adopted this practice. These methods may even involve later decisions, particularly by higher courts, which have significant effects on precedents. These methods of avoiding judicial precedent include:


This is an option available to any judge and it incorporates identifying a distinctive difference in cases that permits the judge to evade previous decisions (Bovington, 2010). A precedent is avoided in situations where a previous case is rejected as authority due to divergent material facts or narrowness of the statement of law for proper application to the new case.

Overruling and Reversing:

Similar to the distinguishing option, overruling and reversing are also available to any judge particularly as a means of avoiding judicial precedent. While overruling happens when a court decides that the determination of a previous case was wrong, reversing occurs when a higher court topples the decision of a lower court on the same case. On the other hand, a court can only overrule the decision of a lower court than it whereas reversing usually happens in the Court of Appeal which either agrees with or reverses the decisions of lower courts. This is due to the fact that the Court of Appeal is not only an appellate court but also a very powerful court. The decision to overrule or reverse a court's decision on a particular case usually results in the avoidance of judicial precedent.

Refusal to Follow:

This situation arises when a court simply refuses to follow an earlier decision on a particular case. In this case, the court may refuse to follow the previous decision…

Sources Used in Documents:


"Advantages and Disadvantages of the Doctrine of Judicial Precedent." Sixth Form Law.

Retrieved April 30, 2011, from http://sixthformlaw.info/01_modules/mod2/2_1_1_precedent_mechanics/08_precedent_advantages_dis.htm

Bovington, L. (2010, April). Dr. Peter Jepsons. Retrieved April 30, 2011, from http://www.peterjepson.com/law/LAS-8%20Bovington.pdf

"In Practice the Doctrine of Precedent Does Not Contain Judicial Decision Making." (n.d.). The

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