Judicial Precedent Is Best Understood as a Practice of the Courts and Not as a Set of Binding Rules. as a Practice It Could Be Refined or Changed by the Courts as They Wish.’ Discuss.

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Common Law Reasoning and Institutions

Question 6
Judicial precedent is best understood as a practice of the courts and not as a set of binding rules. As a practice it could be refined or changed by the courts as they wish.’ Discuss.

Kiew Boon Yin

Judicial precedent means the process whereby judges follow previously decided cases where the fact are of sufficient similarity. The doctrine of judicial precedent is a practice of the court, it provides guidance to the judges when they apply case precedents. It also provides certainty, consistency and clarity in the application of precedents. The rule is that judges should decide like cases in like manner. It is a decision of the court used as a source for future decision making. This is known as stare decisis and by which precedents are authoritative and binding and must be followed. Doctrine of precedent or stare decisis, this item is from the latin phrase “stare decisis et non quieta movere”, means to stand by decisions and not disturb that which is settled. The doctrine of binding precedent based on stare decisis, that is standing by previous decisions. Once a point of law has been decided in a particular case, that law must applied in all future cases containing the same material facts. For example in the case of Donughue v Stevenson (1932) AC 562. The House of Lords held that a manufacturer owed a duty of care to the ultimate consumer of the product. This set a binding precedent which was followed in Grant v Knitting Mills (1936) AC 85.

The ratio decidendi forms the legal principle which is a binding precedent meaning it must be followed in future case containing the same material facts. Besides, the obiter dicta is things stated in the course of a judgment which are not necessary for the decision.The decision of the judge may fall into two parts, the ratio decidendi means reason for the decision. The ratio decidendi in a case is the principle of law on which a decision is...
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