Essay on "Judicial Precedent"

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Unless unjust decisions of a court are reconsidered by higher courts, past judicial mistakes may be perpetuated particularly when binding precedent occurs. The likelihood of perpetuating previous judicial mistakes through judicial precedent is due to the fact that a flexible system cannot be certain at the same time because of future legal developments.

The Practice of Judicial Precedent:

Since courts are not bound by any set of rules to practice judicial precedent, this practice has continued to be widely adopted by courts and has not decreased because it's a fundamental principle of common law. It has been considered as a practice of the courts rather than an established set of rules that courts must abide to. Courts have continued to practice judicial precedent because it's the spirit of the common law system of rights and duties that provides hurdles to courts on similar matters that were determined by superior courts ("In Practice," n.d.). As a practice of the courts, judicial precedent helps in the achievement of two objects of the judicial system.

First, this practice enables the maintenance of an establishment of stable laws which in turn provides exportability to the law and guarantees a certain degree of security for individual rights. On the second note, the practice of judicial precedent by courts guarantees that developments in the law will only be in reference to the varying perceptions of the community. Therefore, the accuracy in the determination of particular cases when judicial precedent is applied reflects the morals and hope of the community. The practice of judicial precedent enables the development of a balanced and flexible judicial system which takes into consideration the various human experiences in resolving legal problems. As a result, this gradual development of the legal system avoids the negative outcomes associated with hasty and counter-productive reformism.

The practice of judicial precedent by courts provides the best available evidence for the combined wisdom of the common law. Judges need to attach great weight to earlier decisions not only for political and practical reasons but in order to sustain adequate certainty in legal doctrine. While also being important for theoretical reasons, the practice of judicial precedent also helps to avoid seizing the legislative function. Therefore, while there are no set of binding rules, courts practice judicial precedent for political, practical and theoretical reasons as well as avoiding usurping the function of the legislature (Maverick, 2006).

Moreover, judges are required to subordinate their own personal reasoning and values to those enacted in the law. This is due to the fact that reasoning and values of the law are greater than those of presently deciding judges and previous precedent-creating judges. Notably, this doctrine does not dictate a mere adherence to precedent since a judge is not bound by prior judicial decisions but by the implicit principles in those decisions.

Since judges are not bound by previous judicial decisions but by the implicit principles in the decisions, they can change or refine judicial precedent. These judges can depart from following a precedent through several ways that are available to them and the need for flexibility in meeting the needs of the increasingly changing society. This flexibility to change and refine judicial precedent has resulted in the emergence of several precedents which follow a particular set of rules.

Judicial precedent is also considered as a practice of the courts rather than a simple adherence to certain rules because of the ability of the courts to change or refine a precedent due to the changing needs of the society. Basically, the two major needs of people from the legal system are certainty of the law as well as the just and timely application of it. This is likely to be impossible when judicial precedent is rigid and based on a set of binding rules.

Conclusion:

The doctrine of judicial principle is a practice of the courts rather than adherence to a set of binding rules since it's on the basis of the common law system of rights and duties. This practice by the courts is for the aim of meeting the societal needs of certainty, flexibility and justice making it easy to change or refine the precedent.

References:

"Advantages and Disadvantages of the Doctrine of Judicial Precedent." Sixth Form Law.

Retrieved April 30, 2011, from http://sixthformlaw.info/01_modules/mod2/2_1_1_precedent_mechanics/08_precedent_advantages_dis.htm

Bovington, L. (2010, April). Dr. Peter Jepsons. Retrieved April 30, 2011, from http://www.peterjepson.com/law/LAS-8%20Bovington.pdf

"In Practice the Doctrine of Precedent Does Not Contain Judicial Decision Making." (n.d.). The

Lawyers & Jurists: Barristers, Advocates & Legal Consultants. Retrieved April 30, 2011, from http://resources.lawyersnjurists.com/research-papers/assignments/miscellaneous/in-practice-the-doctrine-of-precedent-does-not-contain-judicial-decision-making-activist-judges-can-always-creatively-interpret-previous-case-to-reach-to-the-outcome-they-desire-explain/

"Judicial Precedent." (2007). A-Level-Law.com: The English Law Web Site of Asif Tufal.

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"Judicial Precedent." (2011). Langston & Langston, PLLC. Retrieved April 30, 2011, from http://www.langstonlawyers.com/newsletters/Litigation/?launch_pg=NewsletterDetailLayout&launch_sel=1000364&title=Judicial+Precedent

"Judicial Precedent." (n.d.). School of the Built Environment. Retrieved April 30, 2011, from http://nuweb.northumbria.ac.uk/bedemo/Sources_of_English_Law/page_10.htm

Lewis, S. (n.d.). Using Cases to Illustrate, Explain How and Why the Courts Make Use of the Doctrine of Judicial Precedent and Statutory Interpretation to Resolve Points of Law. Retrieved April 30, 2011, from http://www.peterjepson.com/law/LewisLAS-6.html

Maverick. (2006, October 24). Judicial Precedent - ELS. Retrieved April 30, 2011, from http://mavrkylawcenter.blogspot.com/2006/10/judicial-precedent-els.html

"Precedent In Theory." (n.d.). MultiMania. Retrieved April 30, 2011, from http://members.multimania.co.uk/lawnet/PRECED.htm

Tufal, A. (n.d.). Judicial Precedent. Retrieved April 30, 2011, from http://www.lawteacher.net/PDF/Judicial%20Precedent.pdf READ MORE