Essay on The Operation of Doctrine of Precedent This essay outlines the way in which courts use the system of precedent in deciding cases. Different methods of law-making will be identified, and the authority of judges to make laws will be described. It will state the operation of doctrine of precedent, including binding and persuasive precedent, as well as ratio decidendi and obiter dicta. Explained also, is the problems encountered with the doctrine of precedent and the methods available to overcome precedent. Case law is made by the judges in the courts either when a new case is before them or when the judge interprets a statute. The courts are limited in their power to make law, however, through the court hierarchy and the doctrine of precedent. Judge-made laws are recorded decisions of judges that have been written down and collected over time. There are two main areas of judge-made laws. The first area is Common law, which is judge-made law in areas where no legislation applies, whilst the other area is Judicial Interpretation, which is judge made law relating to the interpretation of the words used in legislation. A precedent is the decision of a court that is used as an authority for reaching the same decision in a later case. The rule that similar cases should be decided in a similar way isnt the center of our idea of justice. If people are to be treated equally before the law, then legal principles or past decisions must be followed and applied to later cases. There are strict rules that guide judges in making and applying precedents. Firstly if courts are to be consistent in the application of precedents, judges must know what earlier decisions are precedents. In other words, these decisions need to be recorded. Only major cases are ever recorded. Recorded cases, which contain some new development, are published in a permanent form known as law reports. Law reports record the judgment in a case. This is a formal statement by the judge which gives the facts of the case, the decision between the parties and the reasons given by the judge for the decision reached. This will often include a lengthy discussion of other sources of information or other cases, which support the reason for the decision, which is known as the ratio decidendi, which will be discussed in more detail further on in the essay. The doctrine of precedent is a set of principles governing the way in which courts must deal with cases they are deciding. The doctrine is also known as the doctrine of Stare Decisis. Let the decision stand. The next paragraph explains the operation of doctrine of precedent. The doctrine of judicial precedent is at the heart of the common law system of rights and duties, developed through decisions of the courts. The doctrine of precedent is important because it allows for a system of appeals, where by someone who is dissatisfied with a decision can appeal to a higher court. When a decision is reached, the reason for the decision stands and is part of the law that is binding on, or guides the courts in later cases. Consistency and predictability is promoted by the system of following previous cases because it means that all cases are decided in a similar manner. The doctrine of precedent requires that like cases be decided alike. If a case before the court has facts and raises issues similar to those of a previously decided case, then the present case will be decided in the same way as the earlier one. In this way, the earlier case, referred to as a precedent will have provided a legal basis on which the later case and subsequent cases could be decided. Generally, lower courts are bound to follow the decisions of courts higher than them in the same hierarchy. The closely connected principle of the doctrine of precedent is defined as the policy of courts to stand by precedent and not to disturb a settled point. Binding precedent is a precedent that must be followed. A precedent will be considered to be binding when the facts in the previous case are similar to the case being considered by the judge, or the precedent was set by a higher court in the same court system. If a judge fails to apply a binding precedent, that failure will provide the ground for an appeal. Only the ratio decidendi of a case is binding. Obiter dicta are never binding. Decisions from other hierarchies or from a court lower in the same hierarchy can act as persuasive precedent. This is influential on other courts but not binding. In such a case, a court may be persuaded by the decision but it is not bound to follow it. In every court case the presiding judge is required to present to the court a statement that outlines his or her judgment and the legal reasoning behind that judgment. Within this judgment are two categories of statements of legal principle which must be considered. These are ratio decidendi, or reason for deciding; and obiter dictum, something said by the way. Often it is difficult to distinguish between the ratio and dicta within a
Posted on: Tue, 29 Oct 2013 16:36:37 +0000
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