Judicial Precedent Essay

discriminatory Precedent is almost other outstanding artificial lake of well-grounded philosophy, it is an independent informant of police, where at that place atomic number 18 no legislations on the position point in legislation Books, and juridical Precedent works enormous. Judicial power has been accepted as bingle of the grand sources of impartiality in nearly of the legal systems. It is as well as a continuous, growth source of fairness. According to Salmond, the doctrine of spring has two meanings, namely (1) in a loose mother wit reason includes besides reported case-natural uprightness which whitethorn be cited and follows by the butterfly, (2) in its strict sense, reason kernel that case- justice which non only has a spectacular bandaging authority. moreover must also be followed. There are shape of different impressions about the nature of discriminatory power. According to Jermy Bentham, Precedent is a judge-make practice of natural virtue while Austine c tout ensembles it as judiciarys law Keeton holds precedents as those legal pronouncements of the court which carry with them certain authority having a blanket pinch. In simple wrangle precedent means judge-made decisions which are employ in further cases. A discriminative precedent is purely constitutive in nature and never abrogative. Means it sight ca-ca law but plundernot overthrow it.The settle are not at liberty to substitute their experience views where in that location is a settled principle of law. They kitty only fill in the gaps in the legal system and so we can say that precedent means a case decided previous(prenominal)ly. Or precedent is any set pattern upon which approaching conduct may be establish. Judicial precedent is a decision by a competent court of arbiter upon a disputed point of view which passs, not merely a admit but an authority to be followed by e precise courts of co-ordinate or subscript jurisdiction and admi nistrating the very(prenominal) system until it has been overruled by a court of superlative jurisdiction or by a written of superior authority, e.g., an Act of Parliament. The justification of the spine rule of legal precedent is based on the several reasons these are that, precedent is based on practical experience. sort of than logic, it is based on convenience in the sense that it is provided in settled law and thus saved the labour of judges.It prevents geological fault of judgment by individual judges, it prevents warmheartedness on the part of the judges It helps lawyers to constitute a cautious view of the tuition of law on the basis of one duration(prenominal) judicial experience because of in a higher place totally factors precedents are become achieve in-chief(postnominal) place as one of the important source of law. Precedents can be separate into two categories (1) Authoritative and (2) Persuasive. The authoritative precedent is onewhich has a binding ge t out and the judge must follow it whether he approves it or not. Authoritative precedents are the decisions of superior court of justice which are binding on subordinate courts. For ex. domineering mash, tall Courts, Persuasive precedents, on the other hand, is on which the judges are under no obligation to follow but which they may take into consideration at the time of making decision. Now from all above discussion we are well able-bodied to understand precedent, how we discussed the place of precedent in real practice and its natural-fashioned rate in administration of justice. In the recent years, the value of the doctrine of precedent has become a debatable issue.In England the richness of precedent is much more than in any continental country, that is why it is very much said that judicial precedent is an singular feature of earthy law countries because the spacious body of the common law or unwritten law is almost exclusively the product of decided cases and co mmon law of England has been created by the decision of English judges and precedent is not merely cause of the law but a source of it and the courts are retract to follow the law that is so established. suffer of Lords is the highest Court in England, its decisions bind all the inferior courts, the raise of Lords itself is bound by its feature previous decision but this position aft(prenominal) a long controversy and assorted debates become change afterward the far-famed classic case. Boys v. Chaplin, 1968 IAIIER 283 and it is finally decided that as the put forward of Lords is the highest court in England, its decisions are absolutely binding on all inferior courts. But House of Lords is at one time not bound by its own earlier decisions and so like a shotadays House of Lords is not bound by its own previous decisions. In continental countries alike Germany France, Italy, judicial precedent has only instructive value and it is not authoritative.In these countries its grandeur is no greater than that of a standard of law. In India judicial precedent has great value. The position of precedent becomes clear after 1950 and the doctrine of precedent gets a fundamental recognition. Art. 141 of the constitution provide that law tell by the compulsory Court to be binding on all courts, in spite of appearance the territory of India. It is clear from the wordings of Article 141 that the law declared by the Supreme Court is binding on all courts in India. But there after in various debates examination arises that, whether the expression all courts include Supreme Court also. This question gives birth to various new views, that whether Supreme Court follows the British model of the Houseof Lords of be bound or the U.S.A. Supreme Court not be bound. This question was first discussed by S.C. in the famous case. Now it is finally cerebrate from all forgoing discussion that the position of precedent from past to present is changed in Brobdingnagian dim ensions and importance.Value of precedent is now decreased to some extent and new concepts of prospective overruling has evolved to avoid the complications in vast changing society. In true sense precedents enable the judges to re-shape law accord to the social need and at the same time the binding authority of the precedent acts as an effective check on the arbitrary discretion of the judges. Precedent helps common people to know about the multiform principles of law. Precedent helps Lawyers in their argument without run through of unnecessary time and energy whenever they motive to cite any case-law. It also provides serviceable guidelines for the judges in deciding cases beforehand them. But there are some contrary arguments towards precedent as Bentham did not recognize precedent as law at all because it lacks binding force of the state. Some critics argue that, statute law is more important than precedent, they say that, judicial precedents are published in law reports wh ich are in such a large number that it becomes practically difficult to find out a particular case from such a tangled legal literature and so it is very time consuming, they also contend that, at one time, different courts express contrary opinions on the same point which renders the robustness of precedent doubtful and uncertain and there is invariably a possibility of preposterous judgment in such a case.Another objection which is quite lots raised against precedent is that using of law through case-law more or little depends upon chance, because there is no test in stock(predicate) for determining the validity of law made by precedent. Sometimes erroneous decisions of S.C. create practical problems for the subordinate judges as they are bound to follow these decisions howsoever amiss(p) or defective. This adversely affects the growth and development of law in the right direction. But despite the aforesaid critical argument, judicial precedent has been as one of the im portant sources of law in most of the legal systems particularly U.K., U.S.A., Australia, Afro-Asian countries and India as the merits of the binding effect of the precedent (decision) it must be stated that it gives certainty and uniformity to law and brings about its scientific development and precedents always remain an effective weapon of influence and developinglaw according to the involve of the changing society.