Doctrine of Binding Precedent

Length: 10 Pages 2520 Words

The English Legal System which can be traced back as far as 1066 AD has been growing slowly over time. Certain characteristics of this law system, such as the law of precedent can be distinguished from other law systems. Judicial precedent or binding precedent often referred to as case law, is one of the main sources of English Law. As time passed a kind of court structure has matured while a hierarchy is formed between those courts. And through the doctrine of binding precedent the decisions made by the higher courts in the hierarchy are been bound on the courts below it. In any good decision making process consistency will play an enormous role, which means like cases should be treated alike. A courts decision shall be consistent with decisions in previous cases and therefore providing certainty for future cases so that people will arrange their affairs relying on the courts opinion . The doctrine of binding precedent is based on the Latin maxim "Stare decesis et non quieta movere" which loosely translated means, stand by what has been decided and do not unsettle the established. Which means a decision made in one case is binding on all following cases of similar fact in lower courts. In practice it means that the Court o Continue...


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There is a wealth of cases to which to refer. Hence the higher the court, its decisions are more authoritative. f Appeal is generally bound by the previous decisions of its own and the courts below it is bound to follow the decisions made by the courts above it. The Divisional Courts are bound by the decisions of the House of Lords and the Court of Appeal and normally follows a previous decision of another Divisional Court. Others can be the simplicity on distinguishing the facts of the cases to avoid following an inconvenient precedent and too much case law making the system too complex. The doctrine of binding precedent still remains highly significant in the English Legal System, due to the Practice Direction of 1966, where the highest court is allowed to reverse previous decisions. However people may feel that treating two cases alike does not allow for much freedom and rigidity is formed, inhibiting the development of the law and therefore giving the impression that the law of precedent is strict and inflexible. The court held that a similar case of Donohue v Stevenson (1932) can not be considered as a precedent in this case, since negligence has occurred in the part of the workman when he constructed the crane. Other persuasive precedents are obita dicta of English judges and decisions of courts in countries like Scotland, Ireland, the Commonwealth and the USA, which are usually cited when there is a shortage of English Authority at a time. And predictability allows lawyers to advice their clients with some degree of certainty. To further understand the doctrine of binding precedents, there are two potential binding elements of law to be noted which are taken into consideration, when a judge makes a decision in the court. The status of a court must be examined to consider whether or not its decisions are binding. An efficient system of law reporting is required in order to operate and expand the doctrine of binding precedent.

PROFESSIONAL ESSAYS:

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