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What is judicial precedent?

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Introduction

What is judicial precedent? What are the main principles that are applied in judicial precedent? Are the different court structure being bound by the decision of others higher courts? To what extend binding precedent ensures the existence of both certainty and flexibility in common law? What are the other advantages and disadvantages that contribute to the doctrine of binding precedent? The doctrine of binding precedent or stare decisis, refers to the fact that, the decision of a higher court will be binding on a court lower than its hierachy. Judicial precedent can be applied on cases and to be treated similiarly when the material facts of the cases are identical. ...read more.

Middle

Through judicial precedent, lower courts are bound by the decisions of higher courts, hence based on the statement it is accurate to say that the doctrine of binding precedent does ensures both certainty and flexibility in the common law. It creates certainty in the sense where like cases are treated alike if the material facts are identical, and this will enable the lawyers and their clients to predict what the likely outcome of a particular case through previous judicial decisions. It also creates flexibility, where this refers to the fact that judges can manipulate the common law provided, then with an opportunity to develop law in a particular areas without waiting for parliament to enact legislation. ...read more.

Conclusion

to any particular area may become rigid on the basis of an unjust precedent with the consequence that previous injustices are perpetuated. Other than that, judicial precedent also causes unconstitutionality. This is a fundamental question that refers to the fact that the judiciary are overstepping their role by making law rather than restricting themselves to the role of simply applying it, and if this happens than its against the declaratory theory of law claims that judges do not make law, but they simply interpret what the law is. Hence, although in judicial precedent, there are many advantages and disadvantages, I personally feel that the advantages outweighs the disadvantages and it is accurate to say that binding precedent ensures the existence of both certainty and flexibility in the common law. ...read more.

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3 star(s)

A brief, but well written account on what has been covered. Important parts of the system of precedent - the hierarchy of the courts and law reporting have received little mention. As commented several times, the piece could be improved by using decided cases to support the points made.
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Marked by teacher Nick Price 03/04/2012

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