Low and management Essay Example | Topics and Well Written Essays - 2500 words

Low and management - Essay Example A binding precedent adheres closely to the precept of stare decisis. It is â€Å"based on the premise that the function of judges is not to create law, but to find law in conformity with existing legal rules.† Under this doctrine, the judge is legally obliged to base his own rulings on previously decided cases, applying the principles of law determined therein. â€Å"This coercive character of the doctrine of precedent is a feature peculiar to the English legal tradition.† (Antoine 2008) On the other hand, persuasive precedents are those legal principles which, while controlling in previous cases, are merely referred to for guidance in the pending case. The judge may refer to these earlier decisions, but will not consider himself bound to abide strictly by them. Examples of such persuasive precedents are decisions of a court of another jurisdiction, and decisions of a lower-level court. Another consideration would be the date the precedent case was decided, since generally, cases which are more recent would be more authoritative as a basis for new decisions. Also, if the case were promulgated by a judge with more prominent reputation, the greater the degree of persuasiveness of that decision. (Gall, 1983) An important basis as to whether a precedent is binding or persuasive is that portion of the judgment from which the legal principle is drawn. Judgments are comprised of the ratio decidendi and the obiter dicta. The ratio decidendi is that part of the judgment where the judge states the material facts of the case and sets down his legal reasons for arriving at his or her decision. If the court which ruled on the precedent case is higher than the court hearing the pending case, then such precedent is binding upon the lower court. On the other hand, the principle may be embodied in the obiter dictum, which comprises the opinions and observations of the judge. The obiter dicta are persuasive in nature; the judge in the