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.
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