Iycee Charles de Gaulle Summary Explain Judicial Precedent and the Types of Precedent Essay

Explain Judicial Precedent and the Types of Precedent Essay

Judicial Precedent means the process whereby judges follow the decisions made by previous judges in similar cases where the facts are of sufficient similarity. In deciding a case, there will be basic tasks, establishing what the facts are, meaning what actually happened, as well as how the law applies to those facts. The idea of judicial precedent is that once a decision has been made in a set of particular facts, similar facts in later cases should be treated in the same way.

The rules concerning which courts are bound by which are known as the rules of judicial precedent, or stare decisis, this may provide consistency and predictability in the law. The decision made by the judges, also known as judgment, in which containing the explanation of the legal principles on which the judges has made a decision, this is called the ratio decidendi, in Latin stands for ‘reason for a decision’. The judges may speculate his decisions would or might have been if the facts are different, it includes the judges thought processes, this is called obiter dicta, in Latin stands for ‘things said by the way’.

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If there are similar facts in a case, the judges may choose to follow the decisions made in previous cases as to produce a decision, or to distinguish the facts, see if they are different from those of the previous one, the judges may choose not following the earlier one. The judges may overrule the previous decision if they disagree with it and was made in a lower court, however, it is only used warily because it may weaken the authority and respect of the lower courts. Besides of overrule, the judges may also reverse the earlier decision unless he thinks that the law applied in the previous case is misinterpreted.

There are different types of precedent, basically it can be divided as 3 types, which are binding, persuasive and original precedent. All judicial decisions in a specific court’s jurisdiction heard at that court’s level or higher are considered to be binding precedent. In contrast, a persuasive precedent is one which is not directly binding on a court but still it may be applied in cases, all judicial precedent outside of that court’s jurisdiction or from a lower court are considered to be persuasive precedent.

For example, the House of Lord has to follow the Court of Appeal decision, although it is not strictly bound, the Court of Appeal may have to follow a High Court decision. Besides, original precedent is precedent which creates and applies a new legal rule, which is normally made when there is no earlier judicial decision on a point of law, it may bound the judge’s decision to the decision in earlier cases even he thinks it to be absurd, it is of comparatively modern origin.