Stare Decisis In English Legal Systems - Essay Example

In English legal systems, stare decisis, is a central feature. It refers to the use of the doctrine of precedent so that courts have an obligation of considering decisions that were made in prior cases. In this respect, precedent cases may be established as binding or persuasive depending on various factors. In distinguishing cases as having persuasive or binding weight, there are two scenarios which are apparent. One is the fact that binding precedents must be followed by judges as opposed to the persuasive precedents which do not obligate judges to follow them; nonetheless, persuasive precedents are useful in distinguishing cases. Second, the binding precedent provides sufficient grounds under which a case can be decided. In contrast, a persuasive precedent, in itself, is not enough in determining a ruling for a case at bar and can be overruled by a judge; its mere existence is not obligatory, hence additional reason is necessary in validating a certain decision. Ratio decidendi is pivotal in differentiating between binding and persuasive precedent. Essentially, it is mandatory to follow ratio decidendi as opposed to the actual decisions which are based on the finding of facts. So a judgment in court can be regarded as binding after consideration of the proposition of law. Given the prevailing facts, a court can regard a case as binding, the contrary of which is merely persuasive. In this case, where a case is not binding, the judicial rule is known as obiter dicta. Generally, a binding precedent or authority unlike persuasive authority must be followed. Under the stare decisis rule, all courts in a lower position within the vertical hierarchy of courts must revere to the findings or decisions made by courts at a higher vertical position. In the United States, jurisdiction of federal and the state courts is normally geographically divided among local courts, most of which are within the realm of the regional court of appeals. Furthermore, each and every appellate court is within the jurisdiction of a supreme court. In light of this, decisions that are made in courts in lower position within the hierarchy are not binding to each other as well as to the courts at a higher position. Moreover, decisions by appeals courts are not binding on local courts that are within a different line of hierarchy or on each other. Furthermore, courts are obliged to follow propositions of law that they had made in prior cases as well as honor decisions reached at in other courts, unless the court handling the case has sufficiently solid reasons to alter the judgments. Rombauer (1978) illustrated a binding precedent in the following terms: Given a determination as to the governing jurisdiction, a court is bound to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, directly in point means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to disposition of the precedent case; (3) the significant facts of the precedent case are also present in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant Some time it is not easy to establish whether a court’s proclamation of a legal principle is ratio decidendi or obiter dictum. As well, it is difficult to differentiate a precedent that is on point. Consequently, in some circumstance the persuasive precedent becomes so credible that it gives similar impacts as a binding precedent (Van der Merwe & Du Plessis 2004). Elsewhere, in extraordinary situations a court on a higher hierarchy position could overrule a binding precedent, although usually, an attempt must be made to distinguish the precedent prior to overruling. A persuasive precedent is not obligatory. In other words, it is not mandatory. Persuasive precedents are usually cases that are decided by courts in lower vertical position, by higher or peer courts that are in different jurisdictions geographically, and cases that are decided in other parallel institutions as well as in rare situation, cases decided in other treaties, nations, and global judicial institutions. It is worth to note that through adoption by a court on a higher vertical position, persuasive precedents can become binding. In distinguishing between cases, the judicial systems apply the doctrine of precedence. Commonly, in legal systems of law a court case that was decided earlier could be used to establish a principle that would apply in making judgments other later cases. Such cases are referred to as precedents; they can be described as a body of principles which are established under judicial guidance, and which courts can consider in making decisions in similar cases. In this technique a judge establishes whether a case on the bar is similar to an earlier decided case. A precedent can be either binding or persuasive as well as custom and case law. The binding and persuasive precedents have been discussed above. It is commonly acknowledged that custom was the first kind of precedent. In this respect, customs become entrenched so much in the society so their force of law becomes significant. The case law precedent is described by several factors. Essentially, it is within the process of distinguishing cases that judges consider whether a precedent is on point besides determining when and where it was made. Thus, a recent judgment has more force than an earlier one given that it is within the same jurisdiction. Likewise, a precedent of a higher court has more weight than one by lower courts. All in all it is in deciding case laws that judges are concerned in making laws. It is an elemental role of judges to create law. Generally, in parliamentary system it is the obligation of parliament to make law. However, judges also have a hand in creating law. When making decisions, judges go against the stare decisis such that they overrule binding precedent (Plessis & Van Der Merwe 2007, p.44) in which case they get involved in making “new points of law” (Rees & Mantin 1991) which become useful in subsequent cases. So while judges are deciding on cases, they are required to recognize and analyze the “material facts” of a case (Rees & Mantin 1991), and must regard the law in considering these facts. Therefore, while applying the law to these facts they are actually involved in creating case laws. So later cases that have facts or issues matching the ones of precedent cases, then they are dealt with similarly. It is this factor that creates a condition of fairness in making rulings since subsequent defendants get the same treatment as previous ones. Conclusion In this discussion, it has been established that precedent is a central feature in common legal system of law, including the English legal system. Judges, in this respect, use the distinction between findings of prior cases and ones of the case at bar. Thus distinguishing cases is a fundamental role of judges as well as judicial lawyers. Of course, it is not common to find cases that are “factually identical” (Von Mehren & Murray 2007, p. 43). Nonetheless, it is within the skills of the judges to establish the distinctions of cases through the use of identify fact in cases being compared. Furthermore, the discussion illustrated the differences in persuasive and binding precedents noting that the latter is mandatory while the former is not. Also, in deciding case laws, judges contribute in creating laws. References Elliott, C. & Quinn, F. 2007, English Legal System, New York: Pearson Longman. Mantin, P & Rees, B 1991, The French Revolution, New York: Heinemann. Rombauer, D. M.1978, Legal Problem Solving: Analysis, Research and Writing, 3rd edn, Washington: West Publishing Company. Van der Merwe, C. G. & Du Plessis, J. E 2004, Introduction to the Law of South Africa, Kluwer Law International. Von Mehren, A. T. & Murray, L. P. 2007, Law in the United States, Oxford: Cambridge University Press. Read More