(i) Explain the meaning of judicial precedent
(ii) State two forms of judicial precedents
ANSWER
(ii) Meaning of judicial precedent
- This is stare decisis
- It is a system of administration of justice whereprevious decisions are relied upon in subsequent similar cases.
- The precedent or earlier decision becomes the source of law for subsequent cases.
(ii) Forms of judicial precedents
- Original precendent: this is law making precedent. It is the principle or proposition of law as formulated the court.
- Declaration precedent: this is the application of an existing principle of law.
- Binding precedent –the earlier decision binds the court in which it is used.
- Persuasive precedent –the earlier decision is used to persuade the court todecide the case similary.
(iii) What are the advantages and disadvantages of judicial precedent?
Advantages:
- Certainty and Predictability: InDodhia V. National and Grindlays Bank the Court of Appeal was emphatic that “a system of law requires a considerable degree of certainty.” Case law makes a legal system certain and
- Consistency and uniformity: case law facilitates consistency and uniformity in the administration of justice as similar cases are decided in
- Rich in detail: many decisions which constitute precedents have been
- Practicality: judicial precedent is practical in that principles or propositions of law are formulated on the basis of practical circumstances that demand legal
- Flexibility: it is contended that case law is flexible in that judges in subsequent cases attempt and sometimes succeed in distinguishing earlier decisions so as to justify departing from
Disadvantages:
- Rigidity: strict application of judicial precedent makes a legal system inflexible and unresponsive to changes. This could perpetuate incorrect
- Over-subtely: when judges in subsequent cases attempt to distinguishing distinguishable cases so as to depart from them, they develop technical distinctions or distinctions without differences. This arguably makes caselaw artificial and may lead to
- Bulky and complex: caselaw is its nature bulky as many decisions have been made and there is no index as to which of them are precedents in what Closely allied to this problem is the challenge of extracting the ratio decidendi.
- Piece-meal: principles or propositions of law are enunciated courts in bits and pieces i.e. there is no deliberate attempt to make law in a comprehensive