Judicial Precedent and the Principle of Stare Decisis - Essay Example

?Judicial Precedent Judiciary has different ways of settling disputes. In most of the cases, it decides the rights and wrongs based on the written principles of constitution or existing penal codes in the country. However, in certain cases, it is difficult for the judiciary to settle the cases based on the constitution or penal codes. In such cases, courts often rely on the previous rulings in similar cases by the upper courts to make judgements. This procedure is called judicial precedent. This paper explains the term judicial precedent, types of precedent, use of precedent, application of precedent in courts, and the role of precedent with law making by legislation. “Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisis. In practice stare decisis means, inferior courts are bound to apply the legal principles set down by the superior courts in earlier cases (Tufal, p.1). The words stare decisis means standing by previous decisions. In other words, once a verdict has given by an upper court in a particular case, that verdict should be applied to all future cases of similar nature. It should be noted that only the verdicts given by the upper courts will come under judicial precedent. The verdicts or judgement of previous cases often considered seriously by the courts before making the final verdicts in the existing cases. Advocates often remind the courts about the verdicts of previous cases of they feel such verdicts help them in one way or another in the existing cases. It is a common practice that lower courts will never try to change the verdicts of upper courts. So, lower courts will always try to follow the judgement of upper courts if the cases handled by them are similar in nature. There are two types of precedent existing; binding and persuasive. The reasons for reaching a particular judgement are often included in the final judgement. The judge will explain which factors forced him to arrive at the final verdict. “The reasons which are necessary for them to reach their decision amount to the ratio decidendi of the case. The ratio decidendi forms the legal principle which is a binding precedent meaning it must be followed in future cases containing the same material facts” (Judicial Precedent). The terms ratio decidendi means reason for decision. In short, binding precedent is mandatory while lower courts take decisions. On the other hand, persuasive precedence is not so. In persuasive precedence, Judges can decide whether they should follow or not follow past verdicts. It should be noted that a judgement includes, many binding and not binding elements. All the binding elements should be followed in future cases whereas other elements need not be followed later. Thus, binding precedence is compulsory whereas persuasive precedence is not compulsory for the lower courts while taking decisions. Judicial precedence helps judges in deciding; Are the cases, for instance: (a) sufficiently similar that the decision of case (1) should be applied in case (2)?; or (b) sufficiently different that the decision of case (1) should not be applied (never mind be considered binding) in case (2)?; or (c) are the factual differences of minimal significance so that case (1) is likely to be applied to case (2)?; or (d) are the facts different, but the principle underlying the decisions in the cases similar? This can be a difficult one. Here you need to be sure what was the principle that was established in the past case: does the reasoning— the ‘why?’—in the past case apply to the second even though the facts differ? In some instances this may even involve using one case in, say, shipping law, to answer a question about the liability of a fairground company to a local authority in the law of contract (The Doctrine of Judicial Precedent, p.155) Judicial precedence helps courts in many ways. It should be noted that individuals (Judges) are taking decisions in courts. No two individuals are alike physically, emotionally, or mentally. Mental abilities such as intelligence and emotional characteristics such as anger or frustrations can affect the judgements of a judge. So, it is quite possible that two judges hearing the cases of similar nature may give exactly contrasting judgement. Thus, two culprits who committed the same mistake may get different judgements. The purpose or use of judicial precedence is for keeping uniformity while dispersing justice. The core of judicial systems in every country is the principle that no innocent person should be punished even if thousands of culprits escaped. To obey this principle, judicial systems should follow certain norms. Judicial precedence help courts to ensure uniformity in judgements while dispersing justice. The use of precedence promotes stability and uniformity in criminal justice system. Both the parties involved in a particular case try to get the verdict in favour of them. However, if the verdict of an upper court in similar cases exists, lower courts cannot overrule it. “Even if a lower court disagrees with a precedent established by a higher court, the lower court remains bound by that precedent until it is overruled by the higher court. For instance, a U.S. District Court cannot overrule a decision of the U.S. Supreme Court, but the U.S. Supreme Court may make a decision that, in effect, overrules itself” (Precedents). The superiority higher court cannot be questioned by a lower court. Even if the higher courts committed certain mistakes, no lower court can question. At the same time, the mistakes committed by the lower courts can be rectified or corrected by the higher courts. There are plenty of situations in which the upper courts commit mistakes. In all such cases, only the upper court can correct themselves. Lower courts should follow the verdicts of upper court irrespective of whether it is right or wrong. In short, judicial precedence upholds the superiority of higher courts. Judicial precedence helps the law making in many ways. “While judges in the civil law tradition mostly interpret the statutory law, common law judges can make the law by creating precedents (stare decisis)” (Che & Ye, p.399). it is not necessary that the existing laws are sometimes inappropriate or insufficient for providing justice. In such cases, judges of higher courts often take decisions based on their wisdom and intelligence. “A justification for the doctrine of precedent is that it is desirable to give courts the power to make law” (Precedent and Analogy in Legal Reasoning). In other words, the needs of law making often force judges to make judicial precedence. It should be noted that penal codes and the norms of the constitution were formulated in the past. It is quite possible that the rights in the past could be the wrongs at present. For example, staying together, extra marital affairs and abortions were illegal in the past. However, these things are acceptable to the majority of the people at present. So, while taking decisions in matters related to the above social issues, a judge can create a judicial precedence which may become a law later. However, it is quite possible that the judges in higher courts proved to be wrong later. In other words, allowing judges to formulate law in the name of judicial precedence often create problems also. To conclude, judicial precedence is used by the judges in courts while writing their judgments in cases. Judicial precedence is of two types; binding and persuasive. While binding precedence is mandatory, persuasive precedence is not compulsory for judges while taking decisions in cases. Works Cited Che, Yeon Koo. & Ye, Jong Goo. “The Role of Precedents in Repeated Litigation”. JLEO, V9 N2 399. 1993. Oxford University Press. Print “Judicial Precedent”. Web. 18 November 2012. “Precedents”. Web. 18 November 2012. “Precedent and Analogy in Legal Reasoning”. 2006. Web. 18 November 2012. Tufal, Asif. “Judicial Precedent”. Web. 18 November 2012. “The Doctrine of Judicial Precedent”. Web. 18 November 2012. Read More