The Principle of Binding Precedent - Essay Example

? The principle of binding precedent First The principle of binding precedent In the practice of Common Law, a Binding Precedence, also known as a Mandatory Authority or a Binding Authority is a decision, usually made by a superior court or a court of the same level as the court hearing the latter case that must be followed. The lower court has in a majority of cases, no option but to abide by a Binding Precedent, regardless of whether or not the judge or the jury sitting on the matter personally agrees with the legal reasoning1. Thus if, for example, if a binding precedent restricts marriage to be between members of opposite gender, the judge hearing a latter case about a similar matter would have to rule that gay marriage was inadmissible, whether or not he or she feels that such a decision is unfair on those who are un gay unions. Similarly if the binding precedent was one that allows for same sex marriages the judge would have to rule in favour of that statute regardless of their own personally held belief to the contrary2. This principal has been followed in jurisprudence in all of the countries that follow the precepts of common law3. There are a couple of situations that must obtain where the Binding Precedent has to be followed. The first is that the courts accept the hierarchy that is in place and the superiority of the court or judge that ruled in the binding precedent. The level of the court can also be the same as the one hearing the latter case. The second situation is that the material facts of law in the latter case must be similar or be based on the same principle as the matter in the original precedent. Binding precedents, as a whole, are usually covered by the doctrine or principle of the Latin maxim: Stare Decisiset Non QueitaMovere which in its most literal translation means “stand by the decision and do not unsettle the established”. This doctrine means that the judge in the latter case must not only accept the judicial decision arrived at in the original case, but he must also agree with the legal reasoning that forms it or from which it finds its meaning. There are numerous reasons why the principle of binding precedent has been embraced and is use in much jurisprudence. The first of such reasons is for the efficiency that the use of device of binding precedentaffords as well as the savings in time and resources in the deliberation and ruling on a matter at hand. The binding precedent does not stifle the development of law but rather improves the efficiency of the application of law. The main principle here being that if each and every judgement was made as a “fresh” or “new” ruling, without relying on an kind of precedence then it would result in an arbitrary and unnecessary delay in the judicial decision-making process. The use of the binding precedent therefore results in a much faster and more efficient administration of justice and employs this time-saving device in a way that results in a faster and more efficient legal process. If a similar matter has been heard and determined during a previous time and most probably by a court of higher authority there really is no reason why a lower court should not dispense of the decision in quicker fashion by accepting the precedent. The binding precedent also provides the administration of justice with a certain degree of certainty. It allows litigants to approach the courts with a certainty that all things being equal then the balance of justice would be the same regardless of the time and place of its actual implementation4. The binding precedent means that lawyers can advise their clients with confidence and certainty on matters of legal principle knowing that the previously existing authorities will be able to bear them out and results in a greater confidence in the law by those that pursue claims through the court process. Binding precedent ensures that the lesson learnt in previous judgements and ruling is therefore consistently and similarly applied in future and that they lend credence and credibility to the judicial process. This engenders confidence in the legal system as it means that those applying for remedy from the courts can expect similar and consistent determination of their suits based on consistent application of the tenets of the established laws and statutes5. This certainly ensures the development of the law and does not stifle its existence or application, since a judicial system derives its strength from the confidence that those who seek its service have in it. Binding precedents also help in the development of law because they go a long way in ensuring that judges and juries have the guidance of the previous judgements and judicial reasoning in implementing and carrying out their current judicial tasks. By providing a usually more experienced, solid and respected reasoning, the precedents that the judgements have to work with ensure that mistakes are not made in coming up with judgements and this results in the development of a much more robust and fairer application of the law. Binding precedent thus protects litigants from judicial errors, judicial impartiality and judicial prejudice of individual and sometimes inexperienced judges6. It this steadies the hand of the judges in their steering of the ship of jurisprudence and by so doing aids in the development of law and its application in the broadest terms possible7. The binding precedent principle is also important in the development and implementation of law as it prevents injustice. It is in the interest of justice that the decision of a case is not different from another whose material facts are similar or the same. This implies that once a particular judgement has been made, it would be unjust to the litigants of a case with similar material facts if a different decision was reached at. By thus ensuring this consistency in the arrival of a decision as well as the means of arrival at that decision, the Binding precedent principle can thus ensure that justice is done and be used as means to prevent the commission of injustice to the litigants in the latter case. The binding precedent principle can also be used as a tool for ensuring the impartiality of a judge. By ensuing that the judge has to abide by the precedent set by his predecessors in the decision arrived in the earlier case the binding precedent protects litigants from a partial judge who may otherwise be at liberty to use his discretion to decide the case and in certain instances this discretion may be influenced by the judge’s own impartiality, prejudices and opinion. By ensuring compliance with a previously held ruling and judicial reasoning, the binding precedent thus prevents an individual judge from subverting the course of justice by rendering a judgement that is coloured by his own prejudices, preconceptions or even avarice. In this way, the principle of biding precedent is results in the development of a fairer system of law that is more immune to the impartialities of individual judges in the lower courts who would normally be less experienced and need guidance from the opinions and rulings of the more experienced judges in the superior courts. Case law, especially Common Law is very practical in its application and does not rely too heavily on theoretical logic8. By requiring that the lower courts apply binding precedents in the way proscribed by the law, the binding principle ensures the practicality of law and moves it beyond just the theoretical mode and places it squarely in the arena of practical means to an end in society. Binding precedent contribute to the development of law by thus playing their role in translating theoretical precepts to practical actions and determinations. By requiring that the lower courts interpret and implement the binding precedents without change the courts thus ensure that the practical implementation of the law continues even in the lower courts which would otherwise be bogged down and mired in the elucidation of theoretical and impractical aspects of the administration of justice. Yet another way in which binding precedents are able to offer opportunities for growth and legal development through the relatively quick introduction of new principles and extending old principles to meet novel circumstances and situations. The development and creation of new law through Parliaments, Congress or other elected bodies can be a long arduous task, especially those that affect fundamental constitutional tenets. Binding precedents, and the fact that they hold those who practice or administer the law especially in the lower courts and in subsequent years to adhere to them and follow them without fail or questioning, provides a faster and more efficient way of effecting case law that handles changes that have happened in societies and situations over a period of time. This makes it possible for laws whose time is past or which have become odious can be put aside through the implementation and pursuit of binding precedents, without having to go through the arduous task of repealing them by having the legislative bodies re-draft and re-pass the laws especially in cases where the revision of laws requires the carrying out of long, complicated referenda. Binding precedents are therefore a more immediate and more responsive way in which any newer and fairer laws can be put in place in a way that does not involve a convoluted, constitutional process. From the foregoing, it is fair to say that the binding precedent does aid the development and growth of the legal system and enhance the efficiency of the administration of justice. However, even with all that, there are a few cautions that need to be sounded in the implementation and use of the principle of binding precedent in a legal system to ensure that it does not get abused and overused to the detriment of the development of the very legal system it has been designed to improve and enhance. There are a few issues in the implementation of the principle of the binding precedent that may, if not properly audited and monitored, may result in making the legal system inflexible and a stifling of the development of the law. One of the issues that need to be looked at when implementing the binding precedent is that the precedent should not make the decisions of the lower court is mere rubberstamping of the previous decisions without enough thought going into them. It is important that every case be decided on its own merit and that the binding precedent is used only where it is clear that the material facts are similar enough to warrant it9. Otherwise rushing to use a binding precedent for every case would result in the lack of development of the law and would certainly stifle any new thoughts, actions and principles in the judicial system. It is important that the use of the binding precedent be thus very carefully and judiciously applied10. Another way in which the binding precedent can actually work to the detriment of the development of the law is when it is used to perpetuate mistakes made by previous judgements11. It is important that during every application of the binding precedent that the facts of the matters at hand and the use of the precedent be looked at very carefully so that any mistakes that may have arisen out of the precedent are taken care of, as soon as they come to light or as soon as the judge in the latter case determines that there is need for a review. The use of the binding precedent principle then does require stringent and detailed examination of the facts of the current case as well as the facts and reasoning for the case which made the precedent. Finally it is important that when the binding precedent principle is being applied to a case for the judge to examine the precedent for any injustices it may have resulted in. Being quick to apply the binding precedent without re-examination of it, may result in the perpetuation of an injustice that may have happened in the original case and it is therefore important that the judge in the latter case be able to assure themselves and the court that applying a binding precedent will not result in an injustice.The preponderance of precedents that may be binding may also be so large as to make it impractical to rely on all the precedents that are available. This is especially true of certain jurisdictions where there are numerous precedents, making it impossible to discern which ones to apply and which not to12. Bibliography Bintliff, B. “Mandatory V. Persuasive Cases” Accessed August22, 2013. http://faculty.law.lsu.edu/toddbruno/mandatory_v__persuasive.htm Hannah, J. “The Role of Precedent in Judicial Decision" Villanova Law Review 2: 3(April 1957): 367-384. Accessed August 22, 2013. http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1425&context=vlr Hondius, E." Precedent and the Law" Electronic Journal of Comparative Law 11.3 (December 2007): 1-18. Accessed August 22, 2013.http://www.ejcl.org/113/article113-3.pdf Lamont, G. “Persuasive Authority in the Law" The Harvard Review of philosophy Journal 17: ( 2010): 16-35. Accessed August 22, 2013. http://www.harvardphilosophy.com/issues/XVII/Lamond,%20Grant.%20Persuasive%20Authority%20in%20the%20Law.pdf Lawgovpol. "What are the types of precedents?" Accessed August22, 2013. http://lawgovpol.com/what-are-the-types-of-precedent/ Miceli, T. " Legal Change: Selective Litigation, Judicial Bias, and Precedent." .Accessed August22, 2013.http://web.uconn.edu/ciom/Legal_Change.pdf Re, E. "Stare decisis" Educating and training series. Accessed August22, 2013. http://www.fjc.gov/public/pdf.nsf/lookup/staredec.pdf/$file/staredec.pdf “The Authority of Precedent: Two Problems.” Accessed August 22, 2013. http://www.mcgill.ca/files/legal-theory-workshop/Neil-Duxbury-McGill-paper.pdf Tufal, A."Judicial precedent”. Accessed August22, 2013. http://www.lawteacher.net/PDF/Judicial%20Precedent.pdf Vong, D. “Binding precedent and English judicial law-making ". Accessed August22, 2013. https://www.law.kuleuven.be/jura/art/21n3/vong.pdf Read More