BUSINESS LAW

Business Law

Business Law

Question 1

Question 2

Judicial precedent cannot be avoided that is “binding” in nature. This also incorporates precedent that is made by UK higher courts in their respective jurisdictions (legal region) or the Supreme Court of the United Kingdom. The doctrine of precedent is referred to a concept in legal system when the system forms a set of rules and principles, which are generally called the case laws - these case laws have been extracted from the decisions made ??by judges in specific historical context and which is linked - persuasive or mandatory - with the case in hand. So the subsequent cases could follow the procedure when a similar case is presented before the court. If in case, the precedent is directly adverse or in contradiction to one's position, he / she can still exercise some options.

First, he / she could find an alternative to “distinguish” the precedent that is binding in nature. This may be understood as act of finding a relevant detail support one's position that makes it somehow different from previous cases in the same jurisdiction. This distinguishing technique can be used to allow the judge to escape the rigid conceptual margins of precedent. In case of distinguishing, the judge's task is much more refined and exquisite, while analyzing the elements entering constituent of the preceding in order to find its elements that determine their inapplicability to the matter in hand.

Here, one just has to thoroughly examine the previous cases, and look into the distinguishing patterns, and finally comparing and contrasting those to the patterns in that are specific to the case in hand. It is pertinent to mention here that one also might has to present some convincing arguments describing why the “holding” (the legally binding decision(s)) of cases previously presented before the court (precedent) should be considered as having distinguished nature than the one, which is currently being debated upon in the court and in order to convince the judiciary that those previous cases are either in agreement or are in contradiction to the position taken in the current case.

There are also other ways through which a judge can avoid legal precedent. A judge, for example, may not be considered bound by decisions made in previous cases if he / she have the legal and constitutional authority to overturn the previous decision, thereby concluding that the previous case was, in accordance with the law, not appropriately decided. The example of the famous case of R v R overturned a 19th Century authority (in which the court held that there could be no rape within marriage) could be cited here to support the argument that a judge can indeed overturn the previous decision if he / she have the legal power to do so. Moreover, a previous case might contain, along with the decision, certain comments, popularly known as “obiter dicta”. According to the English Law, Obiter Dicta are not binding in nature, rather they may be ...