Advantages and disadvantages of binding precedent

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Advantages and disadvantages of binding precedent

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Introduction

The concept of binding precedent may seem absolute. The notion of binding precedent goes hand in hand with the rule of stare decisis which assigns binding force to a number of precedents. In practice however, stare decisis is a flexible concept. Since a judicial opinion may be interpreted in different ways, judges have significant latitude even when dealing with binding precedent (Scanlon, 2004). Differing interpretations results from internal tension between the facts and holding of a case to narrow factual categories, but such interpretations give the case relatively little importance. Binding precedents are not only reasons to decide new cases in a particular way, but also reasons to disregard other potential relevant reasons(Brown and Kennedy, 2000). Due to their exclusionary force binding precedents need normally not to be balanced against competing contributive reasons. If they are applicable, they normally determine the outcome of the cases in which they are applicable(Rodger, 2005). The strong force of binding precedents means that their operation in guided by a number of rules which determine which precedents have biding force for whom, and which parts of the precedents have this binding force. This paper therefore discusses the advantages and disadvantages of binding precedent.

Advantages of binding precedent

Practicality and fair judgments

One of the greatest advantages of binding precedent is that the rules are evolved from real-life cases and are, therefore, essentially practical. Again, the binding feature of the system makes it reasonably certain. The binding precedent is meant to make the law fair to everyone and judges in their rulings are to follow the past decisions made by other judges, in similar cases. This creates a fair judgment and provides certainty in law. Suppose judges frequently make a new law in every case, there would be no democracy (Scanlon, 2004). Laws that could lead to dictatorship would result in a free environment where every judge makes a ruling.

Obiter dictum

According to Harris 2002 Binding precedent or stare decisis is a statement of law based on truth and does not form the basis of a decision. Therefore, suppose a judge considers it necessary to give his or her opinion on some point during the proceedings not necessary for the case, the opinion does not count or have binding authority on a different court (Harris, 2002). However, the opinion of a judge may have a persuasive effect on another case(Hondius, 2007). Since binding precedents provide reasons which are even more formal than persuasive precedents, a legal system is the more formal, the more binding precedent are recognized.

Dissenting judgment

In majority of the courts, as stated by Scanlon2004,one case is given a hearing by more than one judge and so there are full assenting judgments and dissenting judgements in one case. The cases are determined by majority and so biasness and unfair judgments cases are reduced (Scanlon, 2004). A dissenting judgment is an opinion that is contrary to another court’s ruling on a given case. The judgment may not be binding but, may have a persuasive effect on other cases (Steiner et al. 2009). With binding precedent, there is only one speech, which is a combination of more than three judges’ rulings.

Disadvantages of binding precedent

Lack of flexibility

Scanlon, 2004 states that binding precedent is only set, and suppose the material facts in a given case is similar to another which follows it. This does not give it enough flexibility in handling complex cases. Suppos.............


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