Judicial Precedent Research Paper

The judicial precedent originated in England in the 11th century and was later adopted in other Commonwealth countries, including Malaysia. Basically, in the present day, every country that was at some point colonised by England uses the common law system and rules of equity except those that were formerly colonised by other countries. The common law and rules of equity was first introduced in Malaysia by British colonials through various treaties with the local rulers followed by legislation and decisions by English judges or judges trained in the English system (Dr Wan Azhar Wan Ahmad, 2015).

The judicial precedent is more widely known as the common law. The judicial precedent is the body of law formed through decisions made by judges,

In a court of law, obiter dicta is a Latin phrase meaning a remark in passing. It is something said by a judge while giving judgment that is not essential to the decision in the case. Obiter dicta does not form part of the ratio decidendi of the case and therefore creates no binding precedent, but may be cited as persuasive authority in later cases (Law & Martin, 2009). Ratio decidendi, on the other hand, is the Latin phrase meaning the reason for a decision. It is the principle of law that is applied to the facts of a case, and it is what the judges will look at while determining the next case. People are often getting confused because it is not stated in the Hansard as to which ratio decidendi is and which obiter dicta is, the judge who has made the decision will also not indicate which is

One of the main advantages of judicial precedent is, it is more practical as compared to statute law. This is because statute laws which are made by the Parliament are based on made up scenarios whereas common law is based on an actual case. Secondly, precedents are richer in detail than statute law. Statute laws are made by the Members of Parliament that neither have the time or expertise to further create the details in the law. Last but not least, judicial precedents provides greater certainty in the law. It is because if judges of the lower courts follow the decisions of cases made by the judges in higher courts, it shows that the judicial system is fair and it treats every individual equally. The disadvantages of judicial precedents are, because there are too many cases in the archives, there is a tendency to overlook some authorities while referring to the cases. Besides that, as mentioned above, it is difficult to differentiate between ratio decidendi and obiter dicta because judges do not deliberately mention which is which while delivering judgment. Lastly, because judges are not voted and appointed by the general public unlike the members of Parliament who are representatives of the people, they may not know the needs of the people when making case