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 Scanlon 2004, 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. Suppose any two cases have distinguishable facts, then the ruling does not apply in the second case (Scanlon, 2004). Each case must have a distinct feature compared to other and assumption that some cases are similar seem to lose sense (Steiner et al. 2009). Crimes are committed differently and to different degrees and so their lack of similarity. The binding precedent can also be used by judgments to avoid consequences of a former inconvenient decision that might otherwise be binding (Brown and Kennedy, 2000).
- Unfair Overruling
A lower court’s decisions may be overruled by a higher court, for instance, the High Court’s decision can be overruled by the Court of Appeal. In some cases even if the inferior’s ruling is correct, it can be overruled by superior court. According to Rodgers 2005, apart from overruling resulting from improper law application, or because court considers the ruling obtained in the former is no longer desirable, there may exist unfair overruling based on personal opinions (Rodger, 2005).
- Per Incurium
This is a decision reached by mistake or carelessness. Some of the judges waiting to clear a case make unlawful judgments on given cases. Every case is different and so demands a deferent ruling which is not the case with some rulings (Buxton, 2009). A decision of a court is not considered binding precedent suppose given per incuriam. Though majority of the decisions made carelessly are identified, few cases go through. This also happens when many judgements do not participant in making a decision (Hondius, 2007).
In a nut shell, there are numerous advantages of binding precedent compared to the negative effects. Binding precedent is fair as every individual are subjected to similar judgment in any crime committed. This also prevents judges from under or overruling in a given case. Therefore, binding precedent is highly practical and acceptable. When making a decision on a case, it is vital to understand the gravity and possible binding effects of the made decision of a given court. Considering the past similar cases can give an insight of how to handle a given case. However, it is essential to emphasize that the lower court’s decision are not binding on senior court, the higher court is free to give a different decision in any case. Considering cases that are presented before the court, they should ensure that the case ruling takes into account the binding decisions of the superior courts. Binding precedent tends to dwell in the hand of few and imaginative ideas rather practice and so do not apply in some cases. It is therefore important for judges to give a deferent ruling in each case. To avoid biasness however, three or four rulings should be applicable on a single case.
- Brown, L.N., and Kennedy, T. (2000), Brown and Jacobs: @ e Court of Justice of the European Communities (5th edn, London: Sweet & Maxwell).
- Buxton, R. (2009) ‘How the Common Law Gets Made: Hedley Byrne and other Cautionary Tales’, 125 Law Quarterly Review, 60.
- Harris, B.V. (2002), ‘Final Appellate Courts Overruling their Own “Wrong” Precedents: (e Ongoing Search for a Principle’, 118 Law Quarterly Review, 408.
- Hondius, E. (2007) ‘Precedent and the Law’, Electronic Journal of Comparative Law (at www.ejcl.org/113/article113–3.pdf)
- Rodger, A., (2005), ‘A Time for Everything under the Law: Some Reactions on Retrospectively’, Law Quarterly Review, (121), 57.
- Scanlon, G. (2004), ‘Stare Decisis and the Court of Appeal: Judicial Confusion and Judicial Reform, 23 (JUL), 212.
- Steiner, J., Woods, L., and Twigg-Flesner, C. (2009), EU Law (10th edn, Oxford: Oxford University Press).