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Judicial precedent - Essay Example

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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…
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Download file to see previous pages “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 no ...Download file to see next pagesRead More
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