A CRITICAL ANALYSIS OF THE
DOCTRINE OF LEGAL PRECEDENTS
2ND Yr. LL.B. (HONS.) INTELLECTUAL PROPERTY LAW
RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW
15 August 2011
Table of Contents
WHAT IS MEANT BY A PRECEDENT?
TYPES OF PRECEDENTS
Authoritative or Binding precedent
THE DOCTRINE OF STARE DECISIS?
HOW RELEVANT IS THE IDEA OF JUDICIAL PRECEDENTS?
WHAT IS THE BINDING ELEMENT OF A CASE?
WHY SHOULD WE FOLLOW PRECEDENTS IN DECIDING CASES?
CIRCUMSTANCES WEAKENING AND STRENGTHENING THE AUTHORITY OF A PRECEDENT
ADVANTAGES AND DISADVANTAGES OF THE DOCTRINE OF JUDICIAL PRECEDENTS
Judicial methods are the techniques adopted by the judges in deciding cases. Judicial method plays an important role in the development of law, irrespective of the fact whether a community lives in rural simplicity or modern complexity, or whether it follows case laws to decide cases or codified laws. In this paper the researcher is going to discuss the judicial method of legal precedents and the fundamental issues raised by following this method. There are two types of law – statute law and common law. The first category refers to the law passed by the parliament, it is written and must be adhered to. The second type is the common law where judges decide cases by looking at previous decisions that are sufficiently similar and utilize the principle followed in that case. This is called stare rationibus decidendi, usually referred to as stare decisis, which means 'Let the decision stand'. Hence a court may be bound by the statutes or by the decisions of the superior courts. And to understand what judicial precedence and ratio decidendi are, we must study this area of the legal system ie following case laws and legal precedents. One of the functions of the judicial opinion is to help preserve the confidence of the bar and the public in the ability, learning, fairness and open mindedness of the judiciary as a whole, as well as the careful attention due to the particular case, by indicating the grounds upon which the decision is based whenever the case is one not entirely clear.
WHAT IS MEANT BY A PRECEDENT?
A precedent or authority in common law parlance means a previously decided case which establishes a rule or principle that may be utilized by a court or a judicial body in deciding cases that are similar in facts or issues. TYPES OF PRECEDENTS
There are different types of precedent within the law.
The first is ‘original precedent’ which refers to a case having a point of law which has never been decided before, then the decision of the judge in such a case forms an original precedent. Eg. The famous case of Donoghue v Stevenson (case of negligence of the manufacturer and the duty of care he owes to his customers). In such a case the judge has to reason by analogy and look at cases that are similar and are closest in principle and thus arrive at a judgment by using similar reasoning. Authoritative or Binding precedent
As the name suggests authoritative precedent or decision (a.k.a binding decision) is one which judges must follow whether they approve it or not. It is also known as mandatory precedent or binding authority. As per the doctrine of stare decisis, a court lower in the hierarchy follows and honours the findings of law made by a court higher in the hierarchy. The decisions of lower courts are not binding on courts higher in the system. Lower courts are bound by precedent (that is, prior decided cases) of higher courts within their region. Persuasive precedent
And a persuasive decision or precedent is one which the judges are under no obligation to follow but which they will take into consideration and attach as much weight as it deserves. It is a precedent that the court need not follow, but may consider when a decision is being made as it is...
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