Critical Analysis of the Doctrine of Legal Precedents
A CRITICAL ANALYSIS OF THE
DOCTRINE OF LEGAL PRECEDENTS
ADITI GHOSH
2ND Yr. LL.B. (HONS.) INTELLECTUAL PROPERTY LAW
RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW
IIT KHARAGPUR
15 August 2011
Table of Contents INTRODUCTION 1 WHAT IS MEANT BY A PRECEDENT? 2 TYPES OF PRECEDENTS 2 Original precedent 2 Authoritative or Binding precedent 2 Persuasive precedent 3 THE DOCTRINE OF STARE DECISIS? 3 HOW RELEVANT IS THE IDEA OF JUDICIAL PRECEDENTS? 6 WHAT IS THE BINDING ELEMENT OF A CASE? 7 WHY SHOULD WE FOLLOW PRECEDENTS IN DECIDING CASES? 7 CIRCUMSTANCES WEAKENING AND STRENGTHENING THE AUTHORITY OF A PRECEDENT 9 ADVANTAGES AND DISADVANTAGES OF THE DOCTRINE OF JUDICIAL PRECEDENTS 11 CONCLUSION 13
INTRODUCTION:
Judicial methods are the techniques adopted by the judges in deciding cases. Judicial method plays an important role in the development of law, irrespective of the fact whether a community lives in rural simplicity or modern complexity, or whether it follows case laws to decide cases or codified laws. In this paper the researcher is going to discuss the judicial method of legal precedents and the fundamental issues raised by following this method.
There are two types of law – statute law and common law. The first category refers to the law passed by the parliament, it is written and must be adhered to. The second type is the common law where judges decide cases by looking at previous decisions that are sufficiently similar and utilize the principle followed in that case. This is called stare rationibus decidendi, usually referred to as stare decisis, which means 'Let the decision stand'.
Hence a court may be bound by the statutes or by the decisions of the superior courts. And to understand what judicial precedence and ratio decidendi are, we must study this area of the legal system ie following case laws and legal precedents.
One of the functions of the judicial opinion is to help preserve the confidence of the bar and the public in the ability,
DOCTRINE OF LEGAL PRECEDENTS
ADITI GHOSH
2ND Yr. LL.B. (HONS.) INTELLECTUAL PROPERTY LAW
RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW
IIT KHARAGPUR
15 August 2011
Table of Contents INTRODUCTION 1 WHAT IS MEANT BY A PRECEDENT? 2 TYPES OF PRECEDENTS 2 Original precedent 2 Authoritative or Binding precedent 2 Persuasive precedent 3 THE DOCTRINE OF STARE DECISIS? 3 HOW RELEVANT IS THE IDEA OF JUDICIAL PRECEDENTS? 6 WHAT IS THE BINDING ELEMENT OF A CASE? 7 WHY SHOULD WE FOLLOW PRECEDENTS IN DECIDING CASES? 7 CIRCUMSTANCES WEAKENING AND STRENGTHENING THE AUTHORITY OF A PRECEDENT 9 ADVANTAGES AND DISADVANTAGES OF THE DOCTRINE OF JUDICIAL PRECEDENTS 11 CONCLUSION 13
INTRODUCTION:
Judicial methods are the techniques adopted by the judges in deciding cases. Judicial method plays an important role in the development of law, irrespective of the fact whether a community lives in rural simplicity or modern complexity, or whether it follows case laws to decide cases or codified laws. In this paper the researcher is going to discuss the judicial method of legal precedents and the fundamental issues raised by following this method.
There are two types of law – statute law and common law. The first category refers to the law passed by the parliament, it is written and must be adhered to. The second type is the common law where judges decide cases by looking at previous decisions that are sufficiently similar and utilize the principle followed in that case. This is called stare rationibus decidendi, usually referred to as stare decisis, which means 'Let the decision stand'.
Hence a court may be bound by the statutes or by the decisions of the superior courts. And to understand what judicial precedence and ratio decidendi are, we must study this area of the legal system ie following case laws and legal precedents.
One of the functions of the judicial opinion is to help preserve the confidence of the bar and the public in the ability,