"Judicial Precedent must be followed even if a judge thinks that the decision is wrong", discuss.

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QUESTION : “JUDICIAL PRECEDENT MUST BE FOLLOWED EVEN IF A JUDGE THINKS THAT THE DECISION IS WRONG”. DISCUSS.

        A precedent is a previous case that serve as an example to be followed.  In Mirehouse v Rennel (1833), it was clearly stated in the opinion of Baron Parke given to the House of Lords that precedent must be regarded in subsequent cases and it was not for the courts “to reject and abandon all analogy of them”.  The doctrine of binding precedent became firmly established only after the second half of the nineteen century.  It was encouraged by the declaratory theory of the common law.  The principle behind this doctrine is that a decision made by a court in the superior court in the system, is binding on other courts in the subsequent cases where the facts are similar.  It is firmly for the requirement of certainty, uniformity, consistency and flexibility of the law.

        There are two requirements that must be followed if a precedent is to be binding.  First of all, there must be a ratio decidendi statement.  It is a statement of law raised by the facts found upon which a judicial decision is based.  This is in contrast to other statements of legal principle put forward in a judgment which are not directly relevant to the matters in issue.  Such statements are called obiter dicta.  Secondly, the court must have a superior or if not, an equal status to the court considering the statement at a later date.  There are also two reasons as to why decisions of the court are treated with respect and regarded as precedents where they are called upon to determine cases of a similar kind.  The psychological reason is the justification of one’s decision to a dispute by reference rather than to take responsibility of the decision.  The practical reason is the desirablitlity of uniformity in the rulings.

        The present form of the doctrine of binding precedent is due to two factors.  The first was as a result of the Inns of Court and The Law Society establishing a Council so that the publishment of decisions by the superior court are made under professional control.  The second was the establishment of a clear court hierarchy by the Judicature Acts 1873-1875.  It is important that all courts stand in definite relationship to one another for the doctrine to operate.

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        The binding force of a precedent depends on the hierarchy of courts.  Some courts have greater authority than others.  This affects the importance of the precedents laid down by each.  The most powerful court in England is the House of Lords.  Since 1966, following the statement by Lord Gardiner, the general rule that governs the standing of the decisions made by the court is that every higher court binds the lower courts.

        The House of Lords(HL)  binds all other lower courts.  It should continue to follow its own rulings but it need not follow its own previous decisions ...

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