The Doctrine of Precedent and The Elements of a Contract

The Doctrine of Precedent and The Elements of a Contract

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What does the doctrine of precedent mean and do you agree with the comments made by Justice Lionel Murphy?

The doctrine of precedent or ‘stare descisi’ is a principle or operation of law which allows the establishment of case law or common law, whereby the decision of a previous case establishes a precedent on which similar future cases can be decided. The doctrine of precedent says that once a decision is made in a case the ‘ratio decidendi’, or the reason for the decision, becomes a precedent. Unlike statues created by parliament, these case decisions form common law. These precedents and the common law help maintain consistency in rulings of cases. The doctrine of precedent relies on a hierarchy of the courts. This hierarchy means that precedents of superior courts are binding on lower courts, however precedents from lower courts are not binding on higher courts, although they still may be persuasive. Ultimately the doctrine of precedent establishes decisions as precedents to be followed in future cases to maintain a consistent application of law, yet also allowing the establishment of new precedents.

When Justice Murphy said that the doctrine of precedent is “eminently suitable for a nation overwhelmingly populated by sheep” he sought to highlights some of the issues with the doctrine of precedent, including its ability to provide and embrace change. Justice Murphy argues that judges are often to blindly follow the precedent of old cases without considering the changes and evolution that society has undergone since a precedent was established. Some aspects of Justice Murphy’s criticism of the doctrine are valid, in particular the questions he raises about the judicial system too blindly adhering to precedents. While on one hand the doctrine plays a valuable role to ensuring consistency, certainty and fairness, if a bad precedent is established or the precedent is no longer in line with changes in society it can be detrimental if followed too strictly.

In conclusion, the doctrine of precedent is valuable for society but shouldn’t always be followed blindly, as, “somewhere between the world of slavish obedience to past precedent and antagonism towards its rules, lies the real world of Australian law as it is practised in the courts” (M Kirby, 2006).

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There needs to be a balance of abiding by the doctrine of precedent and breaking with it for the law to remain fair and consistent while still reflecting the continuously changing nature of society. While the doctrine of precedent is a very useful and fundamental doctrine of law it is equally important to understand it’s limitations and as Murphy suggests we should not simply follow what has gone before like sheep without thought or consideration for a need to go against and establish new precedent.




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