Precedent

  • The process of judges following the previous decisions is referred to the doctrine of precedent. Judges have to follow the decisions of the predecessors.
  • The Latin term is stare decisis, which translates to “stand by what has been decided”.
  • A precedent can only be set by a superior court in the same hierarchy, if no precedents are already existing.

Binding Precedent

  • Binding precedents are those that compel lower courts to follow the decision. If a precedent is made by a superior court in the same hierarchy, and the facts of the case are similar, then the precedent must be followed.
  • For example, if the Supreme Court of WA sets a precedent, then the DC and Magistrates are bound to follow.

Persuasive Precedent

When a decision is made by a lower court in the same hierarchy, or by an equivalent court in another hierarchy (interstate or international), or the same court in the past, then the precedent is not binding. It is a convincing argument, and does not have to be followed, but it can be.

For example, the Supreme Court in WA is not bound to follow the decisions of the DC, the Victorian SC, or the US Circuit Courts, but can use it as persuasive arguments.

Advantages

  • Consistency and fairness as the courts will decide similar cases in the same way
  • Certainty as the outcome of cases can be predicted, making things more efficient as people know when to appeal or sue.
  • Allows the law to grow to meet new situations.
  • Allows the law to be flexible to meet changing needs.
  • Provides for the efficient operation of the legal system

Disadvantages

  • Rigidity and inflexibility may develop when judges are reluctant to change out of date precedents.
  • Uncertainty may apply if there are more than one precedents applying to a circumstance
  • Change may be slow and irregular because litigants may not have enough money or basis to want to appeal
  • The law develops retrospectively, as a problem must exist before being fixed, and the courts cannot pre-empt future problems.
  • Inefficient in that it provides only for the ad hoc development of the law.

 

 

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