Certainty and Flexibility in Judicial Precedent

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  • Topic: Precedent, Law, Ratio decidendi
  • Pages : 4 (1409 words )
  • Download(s) : 924
  • Published : November 6, 2012
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It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious. The problem is that these two concepts of judicial precedent are seen as working against each other and not in tandem. There is proof, however, that as contrasting as they are on the surface they are actually working together to achieve one common goal. Judicial precedent in its broad definition is the process by which judges follow previously decided cases to aid in their decision providing that the facts are sufficiently similar. The doctrine of judicial precedent seeks to provide consistency and predictability in law by virtue of the application of the principle of stare decisis which means to stand by the decided. Through the application of this maxim, judicial precedent ensures inferior courts are bound to apply the legal principles which were set down in the decisions made by superior courts. The decision of a judge may fall into two parts, ratio decidendi and obiter dictum. The ratio decidendi is the reason for the decision and it is the principle of law on which a particular decision is made. When a judge has come to a decision he outlines the facts which he finds has been proved on evidence, he then applies the laws to those facts and arrives at his decision for which he gives a reason; this reason is the ratio decidendi. Therefore it is important to note that, it is not necessarily the decision which is of utmost importance in judicial precedence but the reason for arriving at the decision. The ratio decinidi is not as clear cut as it sounds though as there are a number of instances where the ruling judge does not explicitly say what the ratio decidendi is and it is sometimes left for a later judge to determine and this is an issue in and of itself as there maybe disagreements as to what the reason actually is. The obiter dictum on the other hand is speculation so to speak. This is...
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