Types of Judicial Precedent - Essay Example

Despite the importance of judicial precedent higher courts can have an effect on it and this occurs when the following occurs: This happens when a court rejects decisions of an earlier case on the bases that there were not sufficient facts to support the decision, in this case, therefore, judicial precedent is affected. An example is the Balfour V Balfour (1991) case. A binding precedent is a precedent that must be followed, in this type of precedent lower courts must follow and honor the 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 a precedent that is not mandatory but helps in decision making, it is also known as advisory precedent because it helps in decision making; therefore the decision will rely on other parallel court decisions example military courts. Example R v Gott (1992) case and the R v Howe (1987) case Customs can also be viewed as a form of precedent whereby decisions by a court will be influenced by customs held by a society, these customs are referred to as precedents only are they have been traditionally held by a community for a long time.

Certainty is present

Advantages and disadvantages of judicial precedent:

Advantages:Certainty:

Certainty is present in law whereby a decision is made in a particular way, in the case where the cases were not based on precedent then there would be the occurrence of uncertainty whereby citizens would not know their rights.

Growth:

The precedent allows the adoption of the law and the development of new laws, relying on previous decisions is a clear indication of the adoption of new laws into the system making it possible for growth and development in the law.

Consistent decision: Because decisions are based on previous decisions then there is a high possibility of consistency in judgment and decision-making, similar cases with similar facts and issues will receive almost similar decisions.Disadvantages:Rigidity: It has a disadvantage in that it is characterized by rigidity, this occurs when the binding decision is made even if the decisions are thought to be wrong, the decisions are made concerning the 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.