Judicial Precedent Essay

3000 Words12 Pages
How does the doctrine of precedent operate? The question at hands requires us to consider how the doctrine of judicial precedent operates in the English legal system. In the following discussion, we will examine the fundamentals of the doctrine of judicial precedent, the operation of the doctrine based on the courts hierarchy, judicial tools used by judges to avoid the doctrine, the advantages as well as the disadvantages of judicial precedent. Judicial precedent refers to decisions made by the judges in cases which create laws for the future judges to follow. This is also known as case laws. The doctrine of judicial precedent (stare decisis) dictates that ‘we should stand by what has been decided and do not unsettle the established’. In order for the doctrine of judicial precedent to operate, two requirements must be satisfied: (i) a clear law reporting system and (ii) a clear hierarchy of the courts. In every case, judges will arrive at their decisions. The decisions are usually very lengthy and complicated. Thus, lawyers in the latter cases will split the decisions or judgements into two parts, namely the ratio decidendi and obiter dicta. Ratio decidendi is defined as the legal reasoning behind a decision. It serves as a binding precedent. It has been misunderstood that it is the decision of each case which binds the latter cases. In fact, it is the ratio decidendi in the decision which has the binding effect. The ratio decidendi of a case will only bind a latter case: (i) with substantially similar facts and (ii) which comes before an inferior court. Obiter dicta on the other hands refers to the statements or things said by the way. In other words, obiter dicta forms part of the judgments other than the ratio decidendi. It serves as a persuasive precedent. It will only be taken into consideration in the future but
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