doctrine of precedent

A detailed Summary of doctrine of precedent

This essay outlines the way in which courts use the system of precedent in deciding cases. Different methods of law-making will be identified, and the authority of judges to make laws will be described. It will state the operation of doctrine of precedent, including binding and persuasive precedent, as well as ratio decidendi and obiter dicta. Explained also, is the problems encountered with the doctrine of precedent and the methods available to overcome precedent.

Case law is made by the judges in the courts either when a new case is before them or when the judge interprets a statute. The courts are limited in their power to make law, however, through the court hierarchy and the doctrine of precedent. Judge-made laws are recorded decisions of judges that have been written down and collected over time. There are two main areas of judge-made laws. The first area is Common law, which is judge-made law in areas where no legislation applies, whilst the other area is Judicial Interpretation, which is judge made law relating to the interpretation of the words used in legislation.

A precedent is the decision of a court that is used as an authority for reaching the same decision in a later case. The rule that similar cases should be

There may be problems with taking account of all parties. Any decisions will need to be reasoned one that considers the parties before the court, any relevant past precedents, that the decision will stand up to any criticism, and the effect of the final outcome. In criminal cases, the ultimate effect of the decision may involve punishment or setting the person free. Another problem may be listening and comprehending all submissions. While it is assumed that judges by their appointment are capable of this, it must be remembered that the legal issues that confront courts have become increasingly complex, raising difficult questions of law, and may involve technical matters pertinent to a specialist area. Many cases may take days, weeks or months to be determined.

No two cases are exactly the same. There may be a number of factual and legal similarities. Each case has its own peculiarities that distinguish it from earlier cases. Consequently, it may be difficult to apply principles established in one case to a new set of circumstances or facts. The volume of law and cases creates a difficulty in locating the case that will be most applicable to the one before the court. Over time, there may be a number of cases involving a particular area of law, and finding the most appropriate case may be difficult. A judge or lawyer may have failed to trace all the relevant case law, or a particularly significant case, where the facts in question are crucial.

When a precedent is binding, a lower court must follow that decision. However, the application of the doctrine of precedent is not as rigid as it appears. It is possible for the decisions established in the higher courts to be overcome, should the facts of the case justify it. There are several methods available to overcome precedent. These methods are: overruling, reversing, disapproving, and distinguishing.

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Approximate Word count = 3096
Approximate Pages = 12 (250 words per page double spaced)

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