Judicial Precedent - Report Example

Judicial Precedent affiliation Judicial precedent The doctrine of precedent remains a fundamental aspect of the English legal systems. It is the fundamental concept that develops the legal and procedural underpins of the law. The English Legal system is based from the legal proceedings and the decisions made by the judge. There is no single specific constitutional part, and the law is incorporated via the continuous court cases rather than the involvement of the parliament. The concrete examples of the past cases build up the legal systems. Such a doctrine is pivotal in the judiciary, as it not only campaigns for the evolvement of the law but also flexibility, modern thinking, clarity and consistency. The coherence to ensure that there is a balance between certainty and flexibility of the law is of utmost significance. Such an element in any legal system emerges to act as a check off, luring confidence of the judicial system from the citizens. In essence, the concept of stare decisis remains the heart of the English legal system. Primarily, when a court makes decisions in any case, then other courts lower or equal in ranking to it must adhere to following the decision in case of emergent of such a case. The ultimate result of such a system is accountability, consistency, clarity, and openness, which is essential for justice to prevail. Such a provision enables law development, a function that does solve the old age issues in legal system. It also serves to balance the aspect of certainty. The essay will hence discuss in details the authenticity of flexibility and certainty of the judicial decisions, and whether precedent. The main concern of this type of law used in the UK is to ensure predictability and consistency of law in handling various cases that has been dealt with before1. In following the precedent law, judges will either use ratio decidendi or obiter dictum to make a final judgment on a case depending on the a previously made decision or basing on his her own speculation on the way the case must end following the guidance of law and experience of such a case. Precedents are most likely to be used when the reason for making a decision is known, facilitating a final judgment to be given in a case presented in court. It is through this that ratio decidendi is said to have been used; a reason for deciding a case in a court of law is known and is valid to be used for cases of similar nature. Either the precedent law can be binding or persuasive in nature, in persuasive president the decision made is considered valid and precious decision but it is not mandatory for the judges to follow it while deciding on a case. For example, decisions of lower courts in England whereby the House of Lords may follow the decision from the court of appeal and the court of appeal may as well follow a decision from a lower court in hierarchy though it is not strictly provided to adhere to the decision. The binding precedent on the other hand is a decided case, which a court of law is obliged to follow without throwing up a challenge and controversial rulings. This therefore requires that legal principles are applied in the similar manner and facts provided in a case do not differ. The judges must follow the initial rulings of cases similar to the on in court, carefully analyze the evidence provide compare it with that of the previous case and draw a conclusion guided by the findings from the decisions from the previous case. Application of judicial precedents in promoting justice and fairness has various consequences, which can be both restrictive and promotive depending on the suitability for use and the constraint encountered in the process of law2. It is easier to apply a decision already made concerning a specific case; little time is spent analyzing and evaluating the facts and the evidence provided in ensuring justice for both parties involved in a case. The fact that the judicial system in Britain follows hierarchical powers and laws in deciding on cases will imply that all people are treated equally in the face of law. The binding precedents are used for all classes of people in the event where the cases are similar to those that have already been presided over by the court3. Flexibility of law in using precedent judicial system is appreciated when judges can develop the laws themselves. Consulted decisions by judges to overrule an obsolete law in most instances show how the judicial system in the UK is plaint. Some of the case though similar may not have the same ruling in a court of law. With the emerging issues in the field of justice, it is very easy give undesired rulings if the suitability of the decision based on previous rulings is not determined. Similarly, not all cases similar in nature will require a similar ruling. The judges are expected to weigh the situations, compared with law and come to a wise conclusion by either agreeing not to follow the preexisting rulings or making necessary alterations to the available laws to promote adequately justice in current situations. In areas not considered very relevant to the legislature, laws can be created by with the help of the precedent judicial system. The House of Lords can employ the practice statement in drafting laws that were initially not provided in the judicial system, this be in the event of new cases and judicial proceedings that equally draw attention of the judicial system4. The rapid changes in the world of law will demand that the basis of decision-making is modernized to provide adequate coverage of emerging issues affecting human rights and freedoms5. The legislature is propelled to review the judicial laws and methods of presiding over the cases. This may as well address the powers vested in judges in making certain decisions during the court proceedings in cases where inadequate information on the way forward is provided. The precedent judicial system provides room for making amendments on laws that are archaic to favour the current situations. Flexibility is also brought by inclusion of a number of ways to avoid precedence in the UK judicial system. Unfair precedents can be avoided through overruling of a decision made earlier in in a lower court by a higher court. Unfair laws are identified and discarded or favourable changes on the precedent laws made to promote justice. This also means incorrect application of the precedent laws renders the decision made invalid. The need to be transparent and authentic in following the law is necessary, failure to do so require that a suitable adjustment in the final ruling be made to uphold justice in judicial system. In this line, a court of appeal can revise a decision made by a lower court and substitute it with its own decision after a critical analysis of the procedures used to reach the decision. This will help ascertain that binding precedents must only be used in the instances where the both the current and previous cases has a rich similarity in facts and presentation. Cases that are almost similar in nature without string support from preexisting basis of decision-making are presided over using persuasive precedents6. Precedential laws are however not fully advantageous in all ways, the problem or rigidity can arise because most rulings made are bound by past decisions and by higher courts of law. Even with the interest shown in need to amend some laws may be frustrated by the lengthy procedures involved. In most cases, any alterations of law are made by the high courts this is with regard to the origin of the case. Inadequacies of laws in lower courts can only be corrected by the authorization of higher courts making it hard to manipulate unfavorable decisions at lower hierarchy. Basing on this on the order to be followed before fault in a law is corrected, it is evident that the precedent laws are not fully flexible but rather exhibit some degree of rigidity in change7. The broad field of knowledge that exist through cumulative and repetitive use of certain laws in deciding cases with almost resembling route of cause enhances simplicity and undisputed rulings in a court of law. The use of binding precedents in making decisions in judicial institution enjoy the advantage of simplicity and time efficiency through the predictability of the right outcome. Use of a preformed basis of decision making in deciding the outcome of similar cases is will heavily influence the course of a case as well as the certainty of the outcome8. Judges are able to reach decisions relevant to the case using the existing precedents as the main reference point and guide during a court proceeding. The judges are in a position to forecast the outcome of a case and make appropriate plans according to how the previous similar cases unfolded. This way certainty is enhanced in the correct and systematic use of judicial precedents. The solicitors and barristers are in good position to give useful information to their clients concerning the likely implications and finality of the cases. The surety of the case will be useful in determining the level of investment in a case and generation of alternative solutions in the event an unsuccessful case. The level of preparedness in a case can be influence by the knowledge how both the judges and clients rate the weight of the case through prediction of the possible outcomes and involvements. Legal certainty is useful in planning of the cases by the judges in a court of law as well preparing the clients psychologically and financially to deal with the case. The allowance given to use previous decisions made in determining the fate of a newly similar presenting case will often give insight on the future outcomes of the case at hand. Though the ruling of a new case might be relatively different, most events and proceedings revolve around the already existing format of provided by precedent laws Consistency in judicial precedence, which is a prerequisite to attaining legal certainty, is brought about in various forms. Judges are prompted to avoid making random decision during a case proceeding. The need to treat similar cases with related facts stands supreme in ensuring that unnecessary law alterations are avoided, consequently building consistency that promotes certainty in the British legal system. Nevertheless, the level at which certainty is impeded in the judicial precedence is significantly noted in a number of was. The judges may be required to deviate from the existing precedents to favour justice. It therefore does not guarantee that cases of similar nature will always have common outcome. The predictability of the decisions made to determine the ruling of a case is therefore made uncertain. Judges are entitled to discretion of law when presiding over similar case in judicial precedence; this is as long as they meet the required standards in doing so. Certainty of a case is deemed, and we cannot confidently say that we will always know the outcome of a case precedence law is applied9. Uncertainty of a case is also brought about by the complexity of judges in deciding the ratio decidendi of a case. Cases requiring more than one judge will most likely render the outcome of a case unpredictable. Giving of more than one ration will imply that a range of decisions is attained in deliberating on the case this is regardless of the previously formed laws on a similar case being used. The battle between the certainty and uncertainty in a case using judicial precedence will continue as long as the laws remain unchanged in the rapidly advancing field of legislation and human rights. Close attention has been drawn to the judicial precedence system in the UK with regard to the suitability of laws in dealing with cases of similar nature. It is undisputed that the benefits of this unique form of providing justice are fur much stronger than the drawbacks. Most of the advantages are intertwined and will to a large scale influence each other such that the change in one of them will have the whole process affected10. In this case, both flexibility and certainty are affected by fairness, predictability, the detailed practical rules, and the power of the appeal courts in deciding on cases from lower courts. On the other hand, certainty and flexibility of law in using judicial precedence is constricted by the complexity of judges in decision-making, the voluminous historical work to research on, confusion and slow development process of law under the system of judicial precedent. In conclusion, to enhance adequately realize flexibility and certainty the use of precedence law the British judicial system is encouraged to accurately distinguish case on the basis of evidence provided as well as judges to exercise full power in revising and overruling cases in favour of justice. This will help eliminate unnecessary impedance on flexibility and certainty of a law process. References Kozel, R.J., 2014. Precedent And Reliance. Emory Law Journal, 62, pp.1459–1507. Kozel, RJ 2014, The Scope of Precedent, Michigan Law Review, 113, 2, pp. 179-230, Business Source Premier, EBSCOhost, viewed 29 December 2014. Law, D.S., 2009. A theory of judicial power and judicial review. Georgetown Law Journal, 97, pp.723–802. Lupu, R., 2013. Sources of Law - Judicial Precedent. Contemporary Readings in Law and Social Justice, 5, pp.375–381. Martinez-Fraga, P, & Santra, H 2012, The Role of Precedent in Defining Res Judicata in Investor-State Arbitration, Northwestern Journal Of International Law & Business, 32, 3, pp. 419-450, Business Source Premier, EBSCOhost, viewed 29 December 2014. Michael, J., 2008. Non-Judicial Precedent. Vanderbilt Law Review, 61, pp.0–11,713–784. Moyer, Laura P; Collins, Todd A; Haire, S.B., 2013. The Value of Precedent : Appellate Briefs And Judicial Opinions in the U.S. C. Justice System Journal, 34, pp.62–84. Re, RM 2014, Narrowing Precedent in the Supreme Court, Columbia Law Review, 114, 7, pp. 1861-1911, Business Source Premier, EBSCOhost, viewed 29 December 2014. Verdier, P, & Voeten, E 2014, Precedent, Compliance, And Change In Customary International Law: An Explanatory Theory, American Journal Of International Law, 108, 3, pp. 389- 434, Academic Search Premier, EBSCOhost, viewed 29 December 2014. Waldron, J 2012, Stare Decisis And The Rule Of Law: A Layered Approach, Michigan Law Review, 111, 1, pp. 1-31, Business Source Premier, EBSCOhost, viewed 29 December 2014. Read More