Judicial Obligation, Precedent, and the Common Law
( INTRODUCTION
In a dispute between two parties, the court must first establish what happened. The facts are usually determined by the trial judge. Although in some countries jury may be used, in Malaysia, it was abolished in the 1980s. Once the facts are determined, the judge will then make the application of law to the facts to determine which party would succeed. The doctrine of judicial precedent is important because it is the ratio decidendi of a previously decided similar case, decided by a higher court to the current facts that will decide the solution of the case.
1 JUDICIAL PRECEDENT
The weight or authority of rules of law derived from cases may vary. These relative weights are determined by the doctrine of precedent. Nearly all legal systems (including civil law systems) have some form of a doctrine of precedent, though its provisions may vary. Even a legal system which explicitly prohibits the citation of earlier cases in court could be said to have a doctrine of precedent in that it has a rule which regulates the use of precedents.
6.1.1 Stare Decisis
Countries which derive their legal systems from the English common law are said to employ the doctrine of stare decisis. They are regarded by many as having a strict rule of precedent, although there is a substantial body of opinion that, in fact, the rule is not applied as strictly as the theory indicates.
The general rules of the doctrine of precedent in common law systems can be summarised as shown in the following Figure 6.1:
Figure 6.1: The general rules of doctrine of precedent
The general rules of doctrine of precedent will be further elaborated as follows.
(a) Each Court is Bound by Decisions of Courts Higher in its Hierarchy
(b) A Decision of a Court in a Different Hierarchy may be of Considerable Weight but Will Not be Binding
In the case of Director General of
In a dispute between two parties, the court must first establish what happened. The facts are usually determined by the trial judge. Although in some countries jury may be used, in Malaysia, it was abolished in the 1980s. Once the facts are determined, the judge will then make the application of law to the facts to determine which party would succeed. The doctrine of judicial precedent is important because it is the ratio decidendi of a previously decided similar case, decided by a higher court to the current facts that will decide the solution of the case.
1 JUDICIAL PRECEDENT
The weight or authority of rules of law derived from cases may vary. These relative weights are determined by the doctrine of precedent. Nearly all legal systems (including civil law systems) have some form of a doctrine of precedent, though its provisions may vary. Even a legal system which explicitly prohibits the citation of earlier cases in court could be said to have a doctrine of precedent in that it has a rule which regulates the use of precedents.
6.1.1 Stare Decisis
Countries which derive their legal systems from the English common law are said to employ the doctrine of stare decisis. They are regarded by many as having a strict rule of precedent, although there is a substantial body of opinion that, in fact, the rule is not applied as strictly as the theory indicates.
The general rules of the doctrine of precedent in common law systems can be summarised as shown in the following Figure 6.1:
Figure 6.1: The general rules of doctrine of precedent
The general rules of doctrine of precedent will be further elaborated as follows.
(a) Each Court is Bound by Decisions of Courts Higher in its Hierarchy
(b) A Decision of a Court in a Different Hierarchy may be of Considerable Weight but Will Not be Binding
In the case of Director General of