Judicial precedent refers to the source of law where past decisions of judges create law for future judges to follow. This source of law is also known as case law. The American judge, Oliver Wendell Holmes Jr., once said that: ‘The life of the Law has not been logic; it has been experience’.
The doctrine of binding precedent or stare decisis,lies at the heart of the English legal system. The doctrine of stare decisis requires that once a decision has been made on how the law applies to a particular set of facts, similar facts in later cases should be treated in the same way. Within the hierarchical structure of the English courts, a decision of a higher court will be binding on a court lower than it in the hierarchy.In general terms, this means that when judges try cases, they will check to see if a similar situation has come before a court previously. If the precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the rule of law established in the earlier case.
It is important to establish that it is not the actual decision in a case that sets the precedent; that is set by the rule of law on which is an abstraction from the facts of the case, is known as the ratio decidendi of the case. The ratio decidendi (Latin for ‘reason for deciding’) of a case may be understood as the statement of the law applied in deciding the legal problem raised by the concrete facts of the case.
The decision in an earlier case is only binding upon any later case if it contains a statement of law which forms part of the ratio decidendi, the legal reasoning of the earlier case. The decision also does not contain any significant differences in the facts as compared to the later case.
Precedent emphasizes on certainty, stability, permanence and the accumulated wisdom of the past.The best way to determine whether the rule as to precedent is a rule of law or simply a rule of practice... [continues]
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