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Understanding the Law - Essay Example

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Coexistence of people within a society is associated with interpersonal interactions in relations. This has led to the need to protect people’s interests from exploitation and oppression by other parties…
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Understanding the Law
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Download file to see previous pages While the binding principle of judicial precedents applies to ratio decidendi as applied in the original case, obiter dicta do not bind. This means that in cases where a judge is bound to use a precedent, the judge must apply the rules of law that were applied by the former judge as ratio decidendi. Other elements of the precedent case that do not form part of the precedent’s ratio decidendi are not binding (Robertson, 2010, p. 20). Types of judicial precedents Application of judicial precedents defines the types of precedents that have been identified in the judicial system. A judicial precedent can be original, binding, or persuasive. An original precedent is a first establishment of rule of law in cases where no precedent has been laid. This occurs when the facts of the case at hand does not correspond to facts of any other case for which a rule of law has been established in interpretation of the law. The presiding judge therefore establishes a precedent to the case called original precedent. A binding precedent is on the other hand a judicial decision that has already been established in a previous decision and whose application binds a judge. The principle of a binding precedent imputes a judge’s obligation to apply an already established precedent irrespective of the judge’s opinion over the principle of law as was established in the earlier case. This application is based on the rule that decision of a higher court binds judges of lower courts (Robertson, 2010, p.18- 19). Persuasive precedents are however not strictly binding to a judge as the judge has the freedom to either apply the precedent or not. This means that unlike in the case of a binding precedent, application of a persuasive precedent is at the...
Understanding the law

The paper will explore concepts of the two legal applications. Judicial precedents Judicial precedents, as defined by Robertson, are a source of law that originates from the judicial system. The doctrine of precedents establishes former decisions by judges to form ground for decisions to be made by other judges in future cases. The doctrine is based on the principle that an established rule of law through decisions of judges should remain standing. Robertson argues that the doctrine establishes ground for “fairness and certainty of law”. The doctrine of judicial precedence is a deviation from the traditionally perceived judicial role of interpretation of the law for implementation. While the primary role of the judiciary is to determine the best meaning in application of law in litigations, the doctrine of judicial precedents offers the judiciary a law making authority. This is because judicial precedents are recognized source of law in which an already established decision is to be applied in future cases involving similar facts. Application of judicial precedents however relies on two principles, ratio decidendi and obiter dicta. While the jury limits the powers of the judge in determining the case, the judge ensures that jurors are properly selected to eliminate chances of bias. The above views are therefore completely justified within the concept of democracy, openness, and fairness of the jury process. ...Download file to see next pagesRead More
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