What is the doctrine of judicial precedent or stare decisis?



The starting point from which to explain the English doctrine of precedent is the principle of justice that like cases should be decided alike. This principle is enforced in English law by the rule of stare decisis (Latin term which means to observe the previous decisions, namely the precedent). This rules is almost universally applied in all jurisdiction throughout the world, but it has a specific coercive or binding nature in the English system. Such binding nature comes from the rules of practice applied by English judges, called rules of precedent. These rules state that, to a large extent, English law is based on case-law. Case-law consists of the rules and principles acted on by the judges in giving decisions when trying a case. At the same time, the English system obliges a judge trying a new case to look back to see how previous judges have dealt with previous cases (precedents) involving similar facts. This is different from the other jurisdictions, where the rules and principles used by a judge to give a decision in a past case are regarded as material the new, current judge may take into consideration,  but he is not bound to do it.

Therefore, in the English system, a judge’s decision in a particular case constitutes a ‘precedent’.  The standing of the rules of precedent depends on the status of the court which decided the case. The decisions of the House of Lords are treated with the greatest respect, whereas the decision of a county court judge has normally limited effect. This approach has developed into a system under which precedents of the superior courts, if relevant to the facts of the case, are  “binding” on lower courts.

But, it must not be imagined that the law is always discoverable by the simple procedure of looking up and finding the right precedent. Life teaches us that fact are infinitely various and by no means all cases are exactly covered by previous decisions.  On the contrary, the facts in question often resemble two or more divergent decisions, that is why, in such circumstances, the courts have freedom of choice in deciding which decision to follow. Further more, cases of first impression arise even today, namely cases in which the facts bear no resemblance to the facts in any previous case. In such a case, when the judge rules, he legislates, in other words he establishes a precedent that future courts must follow.



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