Judicial precedent
Judicial precedent a decision on a point of law that is a made by a judge in a court of law when there is no explicit statute, the statute is unclear on a certain point (a loophole in the law), or there is a lack of precedent (previous decision on similar point of law). Judicial precedents are found most in common law, where few laws are codified. The US Supreme Court, trough its decisions, establishes such precedents (and fills the holes in law), which in time may again be replaced with a new interpretation[1].
There are many possible constituencies for whom judicial precedents may have special meaning[2]:
- the parties to a case or controversy
- other actors confronting the identical legal issues
- other actors confronting similar but not identical legal questions
- lawyers
- other jurists
- the general public
- other public authorities
- legal scholars and groups interests in the Court
Among these constituencies, the ones most tightly bound by nonjudicial precedents are the people or subjects which they purport directly to address or govern, while those most tightly bound by judicial decisions are the litigants or parties.
Advantages and disadvantages of judicial precedent
There are several advantages and disadvantages of judicial precedent[3]:
| Advantages | Disadvantages |
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The Doctrine of Judicial Precedent
The doctrine of judicial precedent, as a common-law doctrine, applies only to those courts that are empowered to administer adjective common law of which the doctrine forms part. Customary courts, Sharia Courts of Appeal, and area courts in Nigeria are not empowered to apply adjective common law. Therefore, the common-law doctrine does not apply to them. Nor does any legislation provide for a precedent system in customary courts. The only attempt to prescribe a precedent in Nigeria's customary court system could be found in the repealed Customary Rules of Bendel State. The question now arises whether there is a rule of precedent under customary law. Although the idea of treating previous decisions with respect and referring to them in deciding a dispute is not unknown to customary law, it appears that there is nothing in the attitude of customary courts, area courts, or Sharia Courts of Appeal in Nigeria to support the view that there exists a system of precedents under customary law[4].
Examples of Judicial precedent
- Marbury v. Madison (1803): This Supreme Court case is the first example of judicial review in the United States, and it established the principle that the Supreme Court could review the constitutionality of laws passed by Congress.
- Brown v. Board of Education (1954): This Supreme Court case declared unconstitutional the segregation of public schools based on race. The ruling was a landmark decision in the civil rights movement.
- Roe v. Wade (1973): This Supreme Court case established the legal right of a woman to have an abortion. It has been a major source of debate and controversy ever since.
- United States v. Nixon (1974): This Supreme Court case established the doctrine of executive privilege and held that the President of the United States did not have absolute immunity from criminal proceedings.
Aside from Judicial precedent, there are few other approaches related to legal interpretation.
- Legislative Interpretation: Legislative interpretation is the process by which the legislature (a body of elected representatives) interprets the laws it passes. When the legislature passes a law, it is up to the legislature to interpret the law and determine how it should be applied.
- Statutory Interpretation: Statutory interpretation is the process by which the courts interpret legislation passed by the legislature. It is the courts’ role to determine the meaning of the law and how it should be applied.
- Regulatory Interpretation: Regulatory interpretation is the process by which regulatory agencies interpret and enforce rules and regulations. Regulatory agencies are responsible for enforcing laws and regulations and ensuring that they are applied in accordance with the law.
- Administrative Interpretation: Administrative interpretation is the process by which administrative agencies interpret and enforce laws and regulations. Administrative agencies are responsible for carrying out the laws and regulations and ensuring that they are applied in accordance with the law.
- Judicial Interpretation: Judicial interpretation is the process by which the courts interpret laws, regulations, and other sources of law. The courts are responsible for determining the meaning of the law and how it should be applied.
In summary, Judicial precedent is a decision on a point of law that is made by a judge in a court of law when there is no explicit statute, the statute is unclear on a certain point (a loophole in the law), or there is a lack of precedent (previous decision on similar point of law). Other approaches related to legal interpretation include legislative interpretation, statutory interpretation, regulatory interpretation, administrative interpretation, and judicial interpretation.
Footnotes
| Judicial precedent — recommended articles |
| Procedural fairness — Summary offense — Written resolution — Proxy solicitation — Statutory obligation — Master deed — Attribution Rules — Testimonial evidence — Mutual assent |
References
- Gerhardt M.J., (2011), The Power of Precedent, Oxford University Press, Hong Kong.
- Gray D., (2010), Public Services, Heinemann, London.
- Raymond W.J., (2000), Dictionary of Politics, Brunswick Publishing Corp, Virgina.
- Uwakah O.T., (2001), Due Process in Nigeria's Administrative Law System, University Press of America, New York.
Author: Aneta Szewczyk
