Certainty and Flexibility in Judicial Precedent

It must be possible to extract the ratio decidendi of the precedent. The ratio decidendi (reason for a decision) is the point of law on which the previous decision was based. Obiter dicta are remarks of the judge, which are not essential for the disposal of the case. They tend to be hypotheses indicating what his preferred decision would have been if the facts had been slightly different. The doctrine of judicial precedent is less rigid in the criminal courts.

xiii) Influence of EU ensures that altering UK constitution is hard – cannot be incompatible

Stare decisis “to let the decision stand” operates in a pyramid-type fashion and is the doctrine that judicial decisions stand as precedent for cases arising in the future. It is a fundamental policy of our law that, except in unusual circumstances, a court’s determination on a point of law will be followed by courts of the same or lower rank in later cases presenting the same legal issue, even though different parties are involved and any years have elapsed.

27). By following this doctrine of precedent, stare decisis, judges are bound to follow the ratio decidendi, the reasons given, for the rulings in previous cases from higher up in their jurisdictional hierarchy. Rulings from other jurisdictions can also be used as persuasive force and argument, as can the obiter dicta, the judges’ comments other than those given as the reason for the ruling. In this way Judge made law resolves conflict and injustice by ruling consistently with rulings made in previous, characteristically similar cases. An inconsistent approach to similar situations cannot equate to being fair, just or equitable. In this way the ALS is not biased or prejudice, is applied equally to all, and ensures that the law is based on fairness and justice.

The last primary source of law is Case Law. Case law is laws created from former cases or existing laws (Sources of Law, 2017). Case law is rules created from court decisions. Case law, also be known as precedent or common law, is the body of prior judicial decisions that guide judges deciding issues before them. Depending on the relationship between the deciding court and the precedent, case law may be binding or merely persuasive (U.S. Case Law n.d.). An example of this law would be a civil suit. Case law is rules based on court decisions.

A judge or court engages in a policy of judicial restraint, by contrast, may have a history of the defense of the laws as written, and adherence to precedent. The political composition of a restraint-based court should have little effect on decisions, because the judges will

The Supreme Court, which does overrule its precedent from time to time, does not need to do a lengthy analysis of each precedent’s viability in every case. Rather, through its certiorari jurisdiction (certiorari – an order by which a higher court reviews a decision of a lower court), it selects cases and issues that allow it to reconsider precedent on its own time. When the Court decides that a previous decision may be in jeopardy, it often asks the parties to brief whether precedent should be overruled.4 The Court must still confront petitions questioning precedent, but it can dispose of these quickly and without explanation if it so chooses through a simple denial of certiorari. This shows that horizontal stare decisis is upheld in the

The doctrine of Judicial precedent applies the principles of stare decisis which ‘lets the decision stand’. ‘Whenever a new problem arises in law the final decision forms a rule to be followed in all similar cases, making the law more predictable’ making it easier for people to live within the law.

ttempts by the courts to “calibrate” the principle have involved doctrines of “due deference” and “discretionary area of judgement”, the “margin of appreciation”. These doctrines are generally justified on two grounds ,the courts lack democratic legitimacy and accountability, in areas of public policy and the courts are institutionally incompetent to deal with the socio-economic issues .

The rules of precedent themselves are judge made, except where a statute has intervened. Occasionally, judges have to decide on a case where there is

A court precedent is earlier cases that have similar issues. Each court decision is based on an earlier decision in court from previous years. To show that constitutional rights have been violated, courts point to good court decisions in earlier cases and describe how the facts in those cases are similar to the facts in that particular case. They have to show how the general principles of constitutional law presented in the earlier decisions apply to the situation. Today, all courts are essentially bound to follow earlier court decisions. For example, if a state Supreme Court issues a decision, all lower courts are bound to follow that decision. (Siegel, Schmalleger, and Worrall, 2014) Quite naturally times have changed since most of the decisions

Stare decisis is the legal principle of determining points in litigation according to precedent. Some judges believe it is important to follow the principles of stare decisis, because it helps guide their decisions based upon similar issues that have already happened. However, some judges do not agree with always following the principles of precedent. Precedent can become discriminating when someone is being judged for another person’s similar actions. That is why it is important for judges to have the option of discarding precedent. There are different ways of selecting judges, such as the popular election and the Missouri plan. Another way is through the judicial selection, where State Governors or Legislatures will personally choose them.

On its own much of this is interesting to think about, but when put in the context and assumptions that the paper was founded on, this becomes a significant issue. A large part of that context is that the courts hold the answer, even if it is not the one that technically follows the letter of the law, the courts hold the final decision in the matter. The impact of this research then is evidence that over the last 20 or 30 years, a significant portion of the decision making process has been predetermined before the lawyers say a word. Shifting

It upholds the concept of legal certainty of law and is committed to the Doctrine of Stare Decisis. Similar to the Supreme Court, the High court will depart from precedent but is unlikely to do so. In Attorney General V Residential Institutions Board, Hogan J decided a case but would have done so differently if it wasn’t covered by recent authority. Thus he was compelled to follow precedent with ‘deep personal reluctance’. It is clear that the High Court is reluctant to depart from Precedent. In Kearns v Manresa Estates Ltd [1975], Kenny observed that the High Court will not depart from precedent unless the case has been wrongly decided. There are practical reasons for this. The High Court is the court of first Instance and it ought to ensure predictability and stability. There is the option to the Supreme Court if the parties involved are not happy with the decision. The Supreme Court can be more flexible and can take into account other facts of the case. Both the Supreme Court and the High Court have the possibility of departing from president. This proves that the Doctrine of Stare Decisis is more normative policy rather than a binding

Time-saving. Where principles have been established, cases with familiar facts are unlikely to go through a lengthy process of litigation. The main disadvantages of the doctrine of judicial precedent are; -