Judicial precedent

Judicial precedent
See also

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
  • Consistency in the law helps to provide a sense of equality and justice
  • Certainty because of the high number of recorded cases which have gone before lawyers
  • Flexibility the options available to judges ensure that the law can develop and be applied fairly
  • Bulk the sheer volume of prior cases can make understanding the law very time consuming
  • Illogical distinctions judges may look for justifications not to follow a precedent and create illogical distinctions to support them
  • Accident of litigation the court relies upon a suitable case appearing if it wishes to alter the law

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].

Footnotes

  1. W.J. Raymond 2000, p.257
  2. M.J. Gerhardt 2011, p.152
  3. D. Gray 2010, p.26
  4. O.T. Uwakah 2001, p.91-92

References

Author: Aneta Szewczyk