The Key Rules of Judicial Precedent - Essay Example

Judicial Precedent Name Course Lecturer Date A judicial precedent refers to the process whereby a follow up of the cases that have been formerly decided is done regarding facts that have a similarity that is sufficient1. This paper is concerned with the key rules of judicial precedent and its advantages and disadvantages for business and commerce. Stare decisis principle is applied in the judicial precedent doctrine which refers to the act of standing by what is decided2. The main reasoning behind this is bringing about consistency, continuity and predictability in law. The courts that are inferior are, therefore, linked to the ways that have been placed by the courts that are superior previously Al-(Alami 2012, p32). On the contrary, judicial precedent may not be preferred by some as the adopted means on the basis of rigidity, complexity, confusion and injustice. The doctrine of precedent is of significance to the legal practice and dictates the judicial systems and the mode in which the legal issues are approached. Those who advocate for a strong following of the judicial precedent are assertive about the predictability and consistency arising from adhering to this system as the reason why it should be strongly adopted. The view is that there is a likelihood of having a maintained confidence of the public pertaining to the operation of the law and the judicial operations. On the contrary, a judge in Australia, Justice Lionel Murphy, who was in service of the Australian High Court, the highest court in Australia (1975-1986), described a risk of a high level of injustice due to the rigidity of precedent3. (Levi 2013, p97) One of the principle in consideration in the issue of judicial precedent is the binding nature of ratio decidendi. This indicates that the lower courts are bound by the ratio decidendi which is a determination by the majority judges’ reasons rather than being bound by the entire decision of the judicial. Considering the case of Garcia v National Australia Bank Ltd it is clear that this approach has some consequences to precedent. One major consequence is that the views of the judges in dissent and all the statements of the judicial are not integrated in union with the binding precedent. In the determination of the ratio descendi of a judicial decision, complexity arises especially where judgements have a multiple concurrence in a single case as published by various judges. This scenario may call for the ratio being obtained from the important sections of consensus located within the views of the judges who are in the majority. There is an argument especially by the common tradition law lawyers that the judicial independence is at stake since the varying views are not allowed to be expressed, in a general sense, by the civil law tradition. The argument is furthered by the observations that there is an application of seemingly formulaic reasons even in controversial cases (Posner, 2013). The need for an open discussion and strong reasoning is, therefore, an aspect of judicial precedent that can’t be ignored. In an effort to meet this need, there is an ample application of multiple reasons in the precedent cases in an effort to bring about an acceptable end to all the parties that are involved in the legal process. Bringing in a distinction between the binding force of an order and the legal principles helps in explaining further the nature of a legal precedent. In the event of overruling a former legal decision by the High Court of Australia, the ratio decidendi of that decision does not hold any longer a judicial precedent. The effect and the validity of the particular judgement and orders relating to overruled case, however, is not affected. The arguments describing the validity of this state were expressed in Ruddock v Taylor4. There has been a rejection by the High Court of the proposition that there is entirety of restriction by the decisions that it has made in the past. In the case of Attorney General for New South Wales v Perpetual Trustee Company Ltd5, Justice Dixon suggests that such a binding notion is not appropriate especially in the consideration of the Court in the nation’s governance. The Australian High Court holds that only under very special circumstances should the previous decisions be overruled and that the exercising of this power should be done with great caution. In the consideration of the constitutional cases, there have been a number of cases where a re-examination of the past decisions has been done (Anderlini, Felli & Riboni 2014, p155). The explanation to this may be majorly because of the entrenched nature of the constitutional decisions that the Court has to reach to. The legislature cannot overrule constitutional decisions. Some of the main advantages of the judicial precedent are: consistency, continuity and predictability. For a legal system to be considered as just and rational, decisions that are inconsistent must be avoided at all costs. This upholds the reputation in the law. Inconsistency is highly eliminated by precedent thus doing away with irrationality and injustice. In addition, judicial precedent allows for predictability and continuity to a great extent. For business and commerce to thrive in the country, there must be an application of principles and rules that can be ascertained in advance. In a dissenting judgement, Bradeis J. summed up this point of view in his statement, “in most matters it is more important that the applicable rule of law be settled than that it be settled right’6. There is an advantage to the businessmen who demand a substratum of settled rules as the basis for engaging with contracts. It is expected, in business and commerce, that particular foundational issues are known with certainty both in the formation and operational cases. Although, various law issues are not completely defined, there are those that must be ascertained. Judicial precedent therefore comes in very strongly in this case in the presentation of the particular facts that dictates the expected outcome from the former cases (Levi 2013, p99). This can be relied on, unless a judge decides that the material facts are sufficiently different from the particular earlier case in concern7. This information has been of great importance to commerce and business. It enhances outcomes that can be expected with certainty. Irrationality and injustice may result in the scenarios where the doctrine of precedent is applied too rigidly. There is need to incorporate the standards of today. The business world has consistent adjustments its existence and operation. As such, there is need for incorporating the changes in the decisions that are achieved. This, however, may not be thoroughly achieved without changing the very nature of judicial precedent. Completely adhering to a past decision may lead to a principle undermined by the values of a bygone era. Due to the judicial precedent concerns, the law is viewed as having incapacity to adaptation of the need for change. Formerly, the pace of social and economic change was considerably slow8. However, in the progressive dynamism of the current business and commerce world, reliance on the pat judgements may result to a serious limitation (Latimer 2012, p53). The enthusiasm to expand in these areas may, therefore, be cut short. Another disadvantage that accrues in this case relates to the difficulties in updating the law. A problem is created for precedent in the desire for justice and adaptability in particular cases and on the other hand the desire for predictability and consistency. A need is presented for a doctrine that is sufficiently elastic and flexible in order to bring about the best from both sides9. It can be said that the judicial precedent does not take into proper consideration how complex a case can be. The lawyers may be preoccupied with the search of a former ruling that can serve their case. The particular issue that the business and commerce is concerned with, therefore, receive minimum attention. In addition, confusion may set in due to the contrasts and the intricate distinction that are found in multiple cases. (Beatty & Samuelson 2012, p101) To bring in a balance between the extremes of rationality and justice, while appreciating the binding nature of a previous judgement, there is formulation of a distinction without a difference. In a strict sense, judicial precedent has a preoccupation with the past decisions and dicta. Efforts that ensure that legal reasoning is not completely dominated by the past authorities must, therefore, be made. Consistency, continuity and predictability must be enhanced for business and commerce to thrive as it should. This will ensure that there is rationality and justice in the operation process especially in the processing of contracts. This helps in doing away with notion that law is a remote discipline which is removed from decision making processes. References Al-Alami, L 2012 Business Roundtable v SEC: Rising Judicial Mistrust and the Onset of a New Era in Judicial Review of Securities Regulation U Pa J Bus L, 15, 541. Anderlini, L, Felli, L, & Riboni, A 2014 Why Stare Decisis? Review of Economic Dynamics. Attorney-General for New South Wales v Perpetual Trustees Company Ltd 1952 85 CLR 237, per Dixon J at 244. Beatty, J, & Samuelson, S 2012 Business Law and the Legal Environment Cengage Learning Burnet v Coronado Oil & Gas Co 285 1932 US 393, at p406. Garcia v National Australia Bank Ltd 1998 194 CLR 395, per Kirby J at 417; Federation Insurance Ltd v Wasson 1987 163 CLR 303, per Mason CJ, Wilson, Dawson and Toohey JJ at 314. Goldman, A, & Sigismond, W D 2013 Cengage Advantage Books: Business Law: Principles and Practices Cengage Learning. Latimer, P 2012 Australian Business Law 2012 CCH Australia Limited. Levi, E H 2013 An introduction to legal reasoning University of Chicago Press. LK Murphy, “The Responsibility ofJudges”, opening address for the First national Conference of Labor Lawyers, 29 June 1979,in G Evans ed Law Politics and the Labor Movement, Legal Service Bulletin, 1980 Clayton Victoria. Posner, R A 2013 The behavior of federal judges: a theoretical and empirical study of rational choice Harvard University Press. Ruddock v Taylor 2005 79 ALJR 1534, per Kirby J at [169]-[172]. The Hon Sir Anthony Mason, “The Use and Abuse of Precedent” 1988 4 Australian Bar Review 93, at 93. Read More