The Doctrine of Precedent - Essay Example

The purpose of this paper is to discuss the Doctrine of Precedent which is considered as both a blessing and a curse. Legal systems within the United Kingdom were established for the most part on judge-made law, the laws developed through decisions by judges on cases brought before them. This is commonly called "common law" or case-law. Every jurisdiction developed its own forms of common law, with special note that Scotland being especially distinct from the rest. Correspondingly, in accordance to the call and tests of times, new laws as well as law reform have increasingly been brought about through Acts of Parliament.

These laws are usually inspired by the policies and advocacies of the Government. As such, the progress and enhancement of case-law nevertheless remains an important source of law. The statement of law made by a judge in a case before his or her court, subsequently turn out to be binding on later judges and can in this way develop into the law for everyone to follow. It has been said that the depth and force of English law is that it is developed upon the specific example of case law rather than hypothetical models.

In line with this, the lawyers will device a sufficient and effective case management system to be able to argue his or her client's case rationally and logically. The following are good examples to consider in the effective case management to wit: What legal principles are involved Or what is the cause of action Following this, it is advisable to consider as to what is the relevant law regarding the principles in the instant case. There after, sufficient pieces of evidence must be considered to prove or defend the case.

And finally, which court has authority to hear and decide the case. At this point, it is important to state that the Doctrine of Precedents usually refer to the cases examined and considered by the Court of Appeal or the House of Lords. A statement of law made by a judge in a case can become binding on later judges and can in this way become the law for everyone to follow. The pronouncement must be made by a court of sufficient seniority. In general, judges at the lowest echelon of decision making, the courts of first instance, are not allowed to issue binding precedents.

These judges may not be hearing full legal arguments but are concentrating on factual findings. Accordingly, it is the higher courts which issue binding rulings and the lower courts must follow them. Similarly, the pronouncement must have formed the ratio decidendi of the case. The reasoning must be a matter pertaining to the law rather than the factual decision. In addition, the pronouncement must not be obiter dictum. An obiter dictum refers to something said either about the law or the facts of the case which are not strictly necessary for the legal basis for the decisions.

It is only the ratio decidendi which will be binding. It will comprise the legal principles and rules which are necessary to solve the problem before the court. Obiter dicta are not binding, however, they may be dealt with as a persuasive authority, wherein the later judges are entitled to read them and be influenced by them, but they are not obliged to follow these parts of judicial pronouncements. It is important to stress out that the Doctrine of Precedents are not concerned as to who won or lost in the case.

The Doctrine speaks of the legal princip