Aisyah

Topics: Precedent, Stare decisis, Ratio decidendi Pages: 1 (356 words) Published: August 25, 2013
The doctrine of binding judicial precedent
The practice of following precedent is also known as ‘doctrine of stare decisis’ (stand by what has been decided). Precedent can either be declaratory precedent or original precedent. When a case is brought before a Court, the facts of the case has to be established by the court. After the facts are established, the judges will formulate and apply the relevant legal principle (the law) and reach their conclusion and decision. In accordance to doctrine this principle may form a guide for future cases. It can either be binding or persuasive. The general is, were the subsequent case is in pari material to the earlier case. Courts of lower rank in Malaysia are bound to follow the decision of the court of higher rank in this country. However this exception when there is a conflict of decision between higher courts of the same rank, the lower court is entitled to decide which one to follow. The decision of the higher court though not expressly overruled, cannot in the opinion of the court stand with the decision of federal court. Distinguishing precedent a judge may distinguish the case when there are material differences in facts between the case before him and the case lying down the precedent. Courts of the same rank are also bound to follow its previous decision. Incoming to a decision as to wish precedent is binding, the judge is influence by two factors that are the origin of the precedent and the content of precedent. In origin precedent, to be binding a precedent must originate from a court of appropriate rank in the heirachy. In content of the precedent, for example, ratio decidendi or legal reasoning that is binding. The ratio decidendi of an earlier case may bind and become a precedent for deciding other cases of similar dispute in the future. Although the decision in a particular case is of importance an interest only to the parties to the litigation, but a judge will give reason for reaching his decision and in...
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