DOCTRINE OF BINDING PRECEDENT

Doctrine of Binding Precedent

Doctrine of Binding Precedent

Introduction

The doctrine of judicial precedent is at the core of the general law system of rights and duties. The courts are bound (within arranged restrictions) by previous decisions of superior courts. Obedience to examples helps attain two objects of the legal order. First of all it contributes to the preservation of a rule of stable laws. This constancy gives predictability to the law and affords a level of safety for individual rights (Sinclair 2007 pp.12-20). Secondly it makes sure that the law develops only in agreement with the altering perceptions of the community and therefore more precisely reflects the ethics and potentials of the community.

A system based on precedent will be coherent, will be flexible to varied and altering state of affairs, will take into description all the varieties of human knowledge, will be highly realistic and will be composed by the handpicked minds of many generations, tuned to a fine balance and educated in the art of detecting legal issues and resolving legal troubles. The gradual growth of the system will keep away from the pitfalls of speedy and counterproductive reformism.

Judicial Precedents

Judicial precedents obtain their force from the doctrine of stare decisis, i.e., that the previous decisions of the uppermost court in the jurisdiction are binding on all other courts in the jurisdiction. Varying conditions, however, soon make the majority decisions inappropriate except as a basis for similarity, and a court must therefore frequently look to the judicial know-how of the rest of the English-speaking world. This gives the system flexibility, while general reception of certain reliable materials provides a degree of steadiness.

Nevertheless, in many instances, the courts have failed to keep pace with communal developments and it has become essential to pass statutes to bring about needed changes; indeed, in recent years statutes have superseded much of common law, especially in the fields of commercial, administrative, and criminal law (James 2007). Normally, however, in statutory interpretation the courts have recourse to the doctrines of common law. Thus amplified legislation has restricted but has not ended judicial supremacy.

An example of conflicting decisions is the right to abortion. Some courts may ban this while other courts may grant permission to carry out abortion.

Decisions can be split into the ratio decidendi and obiter dictum. The ratio is the logic behind the decision or the legal principle upon which it is based. The ratio is also the obligatory part of any decision, anything which is obiter, that is by the way, forms no component of the precedent although it may be very persuasive.

Therefore “Judicial Precedent" considers how the ratio can be identified, before considering how the doctrine of stare decisis operates in the courts in England and Wales.Obiter Dicta

In the legislation system, the word dicta is essentially utilized to refer to a judge's statement of legal view that is not directly pertinent to the case being heard. Unlike statements that are openly relevant to the case, dicta are ...