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Judicial Precedent - Essay Example

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Judicial Precedent

It has also helped in the development of the English law, however original precedent are those that apply new rule in decision making. Despite the importance of judicial precedent higher courts can have an effect on it and this occurs when the following occurs:
This happen when a court rejects decisions of an earlier case on the bases that there were no sufficient facts to support the decision, in this case therefore judicial precedent is affected. Example is the Balfour V Balfour (1991) case.
Binding precedent is that precedent that must be followed, in this type of precedent lower courts must follow and honor decision made by higher courts. This type of precedent is also referred to as mandatory precedent. Example Young V Bristol (1944) case
Persuasive precedent is that precedent that is not mandatory but helps in decision making, it is also known as advisory precedent because it helps in decision making; therefore decision will rely on other parallel court decisions example military courts. Example R v Gott (1992) case ant the R v Howe (1987) case
Customs can also be viewed a form of precedent whereby decision by a court will be influenced by customs held by a society, these customs are referred to as precedents only is they have been tradition held by a community for a long time.
Certainty is presen
Advantage and disadvantage of judicial precedent:
Advantages:
Certainty:
Certainty is present in law whereby decision are made in particular way, in the case where the cases were not based on precedent then there would be the occurrence of uncertainty whereby citizen would not clearly know their rights.
Growth:
Precedent allows the adoption of law and the development of new laws, relying on previous decisions is a clear indication of adoption of new laws into the system making it possible for growth and development in law.
Consistent decision:
Due to the fact that decisions are based on previous decisions then there is a high possibility of consistence in judgment and decision making, similar cases with similar fact and issues will receive almost similar decisions.
Disadvantages:
Rigidity:
It has a disadvantage in that it is characterized by rigidity, this occurs when binding decision are made even if the decisions are thought to be wrong, the decisions are made with reference to past decision instead of distinguishing them.
Slow growth:
Judicial precedent may also lead to slow growth and development of law, this is because judges will make decisions on cases depending on previous decisions despite the need to make adjustments in the law system. ...Show more

Summary

Judicial precedent an be defined a decision by court that is used to make decisions in the future, in any case a judge will set out facts of the case then state the law applicable and finally make decision regarding the case. It can also be defined as a system which provides principles for making decisions on case with similar facts and issue…
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