Judicial Precedents

Judicial Precedents

Describe judicial precedents. Discuss the different ways case laws can

be superseded and quote some examples.

Answer for question 2

Judicial precedent can only operate effectively if the precise legal

reasons for

the past decision are known. The reasons for the decisions are known

as ratio

decidendi ‘reasons for deciding’, and it is this part of the judgment

that is

binding. Everything else said by the judge is obiter dicta, ‘by the

way’ which

can be persuasive but are not binding.

Judicial precedents elaborate principle of the Common law system.

Previous

judges made their decisions based on all proved facts provided by

solicitors of

both the defendant and the plaintiff, as well as the principle of

pre-existing

laws.

A judge may take the former decision as reference to assist

him to make the present decision. He may also decide the present case

in the same

way as the previous case unless he can give good reason for not doing

so. In addition,

the judge in the instant case may decide it in the same way as that in

the previous case,

even if he can give good reason for not follow this decision. In the

last situation, the

precedent is said to have binding effect. In other situation, the

precedent has some

degree of persuasive effect. Under the system of judicial precedent,

courts are bound

by the decisions of other courts which are superior to them. For

example, the High

Court is bound by a previous decision of the Court of Appeal and the

Court of Final

Appeal.

judicial precedents can be classified into

binding precedents and persuasive precedents. Judge must follow the

decision of

previous case if the precedent is binding and need not to follow if

the precedent is

persuasive. Binding precedent is made by a higher court and lower

court must follow

the decision.