Judicial Precedent Essay

Question 2

Stare Decisis In Malaysia legal system, stare decisis refers to the doctrine of precedent. This means that a case decided by court will be used to answer future legal disputes. Apparently, a later judge should make a same decision as the earlier judge since everything is being equal. However, a judge’s decision will contain some materials which are irrelevant. Thus, we cannot assume every material mentioned by the judge is important or binding when we are talking about ‘binding precedent’. So, it is important to identify ratio decidendi and obiter dicta. The important element for the purposes of binding precedent is statements which contain the principles of law applicable to the legal problem based on the facts found. This would form the ratio decidendi, reason of the

The development of a consistent body of legal principles that can be used is having precedent accelerate. Judicial precedent is a new precedent. New conditions may arise which are not covered by any statutory rule or previous precedent. Past similar cases or perhaps cases from other countries and make new rules for the case before them which can operate like a precedent for future use can be consider by the judges. Judicial precedent is not arbitrary. Court have to use reason and apply the law logically, and so that their decisions are not merely arbitrary.

One of the disadvantages of judicial precedent is uncertainty. The result of a court case can be uncertain until the final (appeal) judgement is made. Some judges may be unwilling to depart from a precedent to make a change in the law. Another one is complexity and volume. A judgement from an appeal courts may contain several separate judgements which may distinct from each other. A judgement may be extremely long and it is for lawyers and judges in future cases to work out the ratio decidendi. There may be differing opinions on what the ratio is and what the obiter