BINDING PRECEDENT DOCTRINE ADVANTAGES AND DISADVANTAGES

Binding Precedent Doctrine Advantages and Disadvantages



Binding Precedent Doctrine Advantages and Disadvantages

Introduction

The concept of a binding precedent is basically a remnant of the common law that originated from the English judicial system, a system which is similarly adhered to by Australia. The concept of binding precedent is not as much compelling as its name implies. Binding precedent means that a decision is made by using a previous case. An inferior court must take binding precedent from superior courts unless there is an appeal. Stare Decisis is a term used with binding precedent. It means to stand by a decision. The doctrine of judicial precedent depends on two factors, court hierarchy and law reporting. Court hierarchy is covered under the section of 'operation of the doctrine'. Inferior courts are bound by previous decisions made by the courts higher above (Seago, 1993). An efficient system of law reporting began in 1865. This meant that previous decisions could be taken into account. The date given for the binding precedent system is 1898 in the UK when the House of Lords declared itself bound by its own previous decisions; this was evident in 1898 London Tramways V London County Council.

Analysis

Doctrine of Precedent a legal term to describe the practice where principles established in previous Court rulings are binding on future cases which have similar circumstances. Rulings issued from a Court are binding on that level of Court and lower Courts. The doctorine that a lower court must follow a precedent is called Stare decisis. Stare decisis is Latin for "to stand by things decided." Stare decisis is essentially the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, although this is not universally true (Bell, 1997).

Precedents viewed against passing time can serve to establish trends, thus indicating the next logical step in evolving applicable interpetations of the law. When a precedent becomes of significant importance to an issue, or represents new or changed law in a particular issue, that precedent is often referred to as a Landmark Case or Landmark Decision. It is the role of the judges to interpret and apply the law to any given case. It is not their job to actually make it, this is done through bills passed in Parliament (Benditt, 1987).

The doctrine of judicial precedent is at the heart of the UK common law system of rights and duties. The courts are bound (within prescribed limits) by prior decisions of superior courts. Adherence to precedent helps achieve two objects of the legal order. Firstly it contributes to the maintenance of a regime of stable laws. This stability gives predictability to the law and affords a degree of security for individual rights. Secondly it ensures that the law develops only in accordance with the changing perceptions of the community and therefore more accurately reflects the morals and expectations of the community ...