Law Judicial Precedent Essay

573 WordsApr 23, 20123 Pages
Q1) Assess the value of the doctrine of Judicial Precedent in the English Legal System. Describe methods available to judges to avoid some of the effects of this doctrine. (25) ANS) Judicial precedent refers to the source of law where past decisions of the judges create law for the future judges to follow. Principles are the important part of the judgment and are known as ratio decidendi which means the reason for deciding. This is what creates a precedent for judges to follow in future cases. The remainder of the judgment is called obiter dicta and judges in future cases do not have to follow it. In cases where there is a particularly important or complicated point of law, more than one judge may want to explain his legal reasoning on the point. This can cause problems in later cases as each judge may have had a different reason for his decision. There are three types of precedent. Original precedent, if the point of law in a case has never been decided before then whatever the judges will decide will form a new precedent for future cases to follow. Binding precedent, this is a precedent from an earlier case which must be followed even if the judge in the later case does not agree with the legal principle. Persuasive precedent, this is a precedent which is not binding on the judges to follow but the judge may consider it and decide that it is a correct principle so he is persuaded to follow it. Such an example can be seen in R v R (1991). The hierarchy of the courts is very important in setting a precedent. Every court is bound to follow any decision made by a court above it in the hierarchy. In general the appellate courts are bound by their own past decisions. Judicial precedent has some disadvantages to itself. Rigidity, the fact that lower courts have to follow decisions of higher courts with the fact that the appellate courts have to follow their own

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