Certainty and Flexibility in Judicial Precedent

Stare decisis “to let the decision stand” operates in a pyramid-type fashion and is the doctrine that judicial decisions stand as precedent for cases arising in the future. It is a fundamental policy of our law that, except in unusual circumstances, a court’s determination on a point of law will be followed by courts of the same or lower rank in later cases presenting the same legal issue, even though different parties are involved and any years have elapsed.

Our court systems are founded on the belief that there should be fairness, consistency, and predictability in judicial decision making. The doctrine that expresses this concept is labeled stare decisis. In essence, stare decisis considers mandatory, or binding, an existing decision from any court that exercises appellate jurisdiction over another court, unless the lower court can show that the decision is clearly wrong or is distinguishable from the case at hand.

It must be possible to extract the ratio decidendi of the precedent. The ratio decidendi (reason for a decision) is the point of law on which the previous decision was based. Obiter dicta are remarks of the judge, which are not essential for the disposal of the case. They tend to be hypotheses indicating what his preferred decision would have been if the facts had been slightly different. The doctrine of judicial precedent is less rigid in the criminal courts.

xiii) Influence of EU ensures that altering UK constitution is hard – cannot be incompatible

The Supreme Court, which does overrule its precedent from time to time, does not need to do a lengthy analysis of each precedent’s viability in every case. Rather, through its certiorari jurisdiction (certiorari – an order by which a higher court reviews a decision of a lower court), it selects cases and issues that allow it to reconsider precedent on its own time. When the Court decides that a previous decision may be in jeopardy, it often asks the parties to brief whether precedent should be overruled.4 The Court must still confront petitions questioning precedent, but it can dispose of these quickly and without explanation if it so chooses through a simple denial of certiorari. This shows that horizontal stare decisis is upheld in the

The last primary source of law is Case Law. Case law is laws created from former cases or existing laws (Sources of Law, 2017). Case law is rules created from court decisions. Case law, also be known as precedent or common law, is the body of prior judicial decisions that guide judges deciding issues before them. Depending on the relationship between the deciding court and the precedent, case law may be binding or merely persuasive (U.S. Case Law n.d.). An example of this law would be a civil suit. Case law is rules based on court decisions.

A judge or court engages in a policy of judicial restraint, by contrast, may have a history of the defense of the laws as written, and adherence to precedent. The political composition of a restraint-based court should have little effect on decisions, because the judges will

Judicial review may well be comprehended in the setting of two particular—yet parallel—lawful frameworks, common law and regular law. Furthermore by two unmistakable hypotheses on majority rules system and by means of a government ought to be put together, legislative matchless quality and detachment of forces. Regular law judges are viewable as wellsprings of law. These judges are also equipped for making new lawful standards and dismissing lawful guidelines that are no more legitimate. In the common law convention, judges are seen as the individuals who apply the law, with no energy to make or obliterate legitimate guidelines.

A court precedent is earlier cases that have similar issues. Each court decision is based on an earlier decision in court from previous years. To show that constitutional rights have been violated, courts point to good court decisions in earlier cases and describe how the facts in those cases are similar to the facts in that particular case. They have to show how the general principles of constitutional law presented in the earlier decisions apply to the situation. Today, all courts are essentially bound to follow earlier court decisions. For example, if a state Supreme Court issues a decision, all lower courts are bound to follow that decision. (Siegel, Schmalleger, and Worrall, 2014) Quite naturally times have changed since most of the decisions

ttempts by the courts to “calibrate” the principle have involved doctrines of “due deference” and “discretionary area of judgement”, the “margin of appreciation”. These doctrines are generally justified on two grounds ,the courts lack democratic legitimacy and accountability, in areas of public policy and the courts are institutionally incompetent to deal with the socio-economic issues .

Stare decisis is the legal principle of determining points in litigation according to precedent. Some judges believe it is important to follow the principles of stare decisis, because it helps guide their decisions based upon similar issues that have already happened. However, some judges do not agree with always following the principles of precedent. Precedent can become discriminating when someone is being judged for another person’s similar actions. That is why it is important for judges to have the option of discarding precedent. There are different ways of selecting judges, such as the popular election and the Missouri plan. Another way is through the judicial selection, where State Governors or Legislatures will personally choose them.

Flexibility, in that there is room for the law to change as was seen in the case of Herrington v British Railways Board (1972), where the House of Lords used the Practice Statement to overrule cases. This gives the courts freedom to avoid past decisions and develop the law. -

Judicial precedent is based on Stare decisis therefore in similar cases judges have to follow their own decisions and decisions made by judges before are binding on similar cases in the future to which previous ratio decidendi applies in order to reach a final decision. Ratio decidendi forms a binding precedent which means that in future cases it has to be followed which contain the same principles. Donoghue v Stevenson in 1932 set a legal precedent still in use today.

On its own much of this is interesting to think about, but when put in the context and assumptions that the paper was founded on, this becomes a significant issue. A large part of that context is that the courts hold the answer, even if it is not the one that technically follows the letter of the law, the courts hold the final decision in the matter. The impact of this research then is evidence that over the last 20 or 30 years, a significant portion of the decision making process has been predetermined before the lawyers say a word. Shifting

It upholds the concept of legal certainty of law and is committed to the Doctrine of Stare Decisis. Similar to the Supreme Court, the High court will depart from precedent but is unlikely to do so. In Attorney General V Residential Institutions Board, Hogan J decided a case but would have done so differently if it wasn’t covered by recent authority. Thus he was compelled to follow precedent with ‘deep personal reluctance’. It is clear that the High Court is reluctant to depart from Precedent. In Kearns v Manresa Estates Ltd [1975], Kenny observed that the High Court will not depart from precedent unless the case has been wrongly decided. There are practical reasons for this. The High Court is the court of first Instance and it ought to ensure predictability and stability. There is the option to the Supreme Court if the parties involved are not happy with the decision. The Supreme Court can be more flexible and can take into account other facts of the case. Both the Supreme Court and the High Court have the possibility of departing from president. This proves that the Doctrine of Stare Decisis is more normative policy rather than a binding