Principles of Law Essay Example | Topics and Well Written Essays - 1500 words

Principles of Law - Essay Example Doctrine of Judicial Precedence This doctrine is based on the principle of stare decisis which simply means to â€Å"stand by what has been decided and do not unsettle the established† (Dernbach and Richard 1981, p.35). The decision is based on two principles, ratio decidendi and obiter dictum, which means the reason for the judgment and other things, said pertaining to the case respectively. It is important to note that, though the obiter might not be part of the judgment, but it can be used in future judgments because of its persuasive nature (Knoops 2005, p.2). Original precedence present themselves in the nature that the present case is coming to the court for the first time and the presiding judge does not have the opportunity or chance to look at past decisions to make a decision on a point of law (Rossini 1998, p.34). This is what is known, as reasoning by analogy and the decision made in the case at hand will be binding at future cases. For example in the case of DPP v Smith (2006), where the defendant had gone to visit her former girlfriend and held her down cutting out her valued hair, the learned magistrate held that it was not actual bodily harm resulting out of assault. On appeal, it was held that even if the issue of the hair was to be determined scientifically or medically, the hair above the scalp was still regarded as hair regardless of its nature. The judges therefore decided that this was actual bodily harm and therefore the case provided precedence for future cases. Binding precedence on the other hand or those whereby a case has been made and future judges or the present judge must abide by it regardless of his or her own opinion. This therefore means that courts in the lower ranks must follow the particular decision regardless of any new issue arising and the cases presented must be similar to the previous decision or must have facts that are almost similar to the case at hand. The judicial system in England and Wales are such that courts are bound and they must follow the cases and decisions made in the upper or superior courts as the decisions in these cases provide precedents that must be followed in future cases with similar circumstances. These cases must therefore be followed or applied by courts down the hierarchy. It is important to note that magistrates or subordinate courts do not set precedent but they must follow the cases set by the superior courts, in this case the House of Lords or the appellate courts (Antoine 2008, p.118). Persuasive precedents are those in which the court decides whether to follow the precedence set or not to follow it. This precedence is not binding to the court and the court can follow them or ignore them depending on the legal principle in the case (Mitchelle and Minel 2003, p.73). These precedents can come from the lower courts or the magistrate courts and only the legal principles present in them can be applied in the upper courts. In R v R 1991, the Court of Appeal prov ided a persuasive precedence for an upper court, the House of Lords holding that a man can be found guilty of rape as against his wife. The Privy Councils in England and Wales are also influential providers of persuasive precedence to the courts of law though the decisions are not as binding as decisions made in a court of law. For example in R v Mohammed 2005,