Judicial precedent or Stare decisis and Legislation as a modern source of Law

Judicial Precedent (Stare Decisis) as a Source of Law

1. Definition and Principles:

Judicial precedent is the source of law where past decisions create law for Judges to refer back to for guidance in future cases. Precedent is based upon the principle of stare decisis et non quieta movere, more commonly referred to as 'stare decisis', meaning to “stand by decided matters”.

Judicial precedent, also known as stare decisis, refers to the practice where courts follow previously decided cases when making rulings on new cases with similar facts. The principle of stare decisis ensures consistency, predictability, and stability in the law. It requires that lower courts follow the decisions of higher courts within the same jurisdiction, and that courts generally adhere to their own prior decisions unless there is a strong reason to overturn them.

2. Binding vs. Persuasive Precedents:

• Binding Precedents: Decisions made by higher courts that must be followed by lower courts within the same jurisdiction. For example, a decision by the Supreme Court of the United States is binding on all lower federal and state courts.
• Persuasive Precedents: Decisions from courts of equal or lower rank, or from courts in different jurisdictions, which are not binding but may be considered and followed if deemed convincing. For example, a ruling by a court in another state or country can be persuasive.

3. Advantages of Judicial Precedent:

• Consistency and Predictability: It creates a stable and predictable legal environment where individuals and businesses can understand the likely legal outcomes of their actions.

• Efficiency: It saves time and resources as courts can rely on established principles rather than re-litigating settled issues.

• Development of Law: It allows the law to develop incrementally through judicial interpretation and adaptation to new circumstances.

4. Disadvantages of Judicial Precedent:

• Rigidity: It may lead to inflexibility, as courts are bound by past decisions even if they are outdated or incorrect.

• Complexity: The vast number of precedents can make the law complex and difficult to navigate.

• Potential for Injustice: Strict adherence to precedent may result in unfair outcomes in specific cases if the precedent does not adequately address the unique facts of a new case.

Legislation as a Modern Source of Law

1. Definition and Authority:

Legislation refers to laws that are enacted by legislative bodies, such as parliaments or congresses. These laws, known as statutes or acts, have the highest authority within the legal hierarchy and can override judicial precedents. 

2. Process of Legislation:

The legislative process typically involves several stages:

• Drafting: Bills are drafted by legislators or legislative committees.

• Debate and Amendment: The proposed bill is debated and may be amended by the legislative body.

• Approval: The bill must be approved by both houses of the legislature (if bicameral) and is often subject to the executive's approval (e.g., presidential assent).

• Enactment: Once approved, the bill becomes law and is published in an official gazette.

3. Advantages of Legislation:

• Clarity and Accessibility: Statutory laws are clearly written and codified, making them accessible and understandable to the public.

• Democratic Legitimacy: Legislation is created through a democratic process, reflecting the will of the electorate.

• Flexibility and Responsiveness: Legislatures can swiftly enact new laws or amend existing ones to address emerging social, economic, or technological issues.

4. Disadvantages of Legislation:

• Lengthy Process: The legislative process can be slow and cumbersome, delaying the enactment of necessary laws.

• Political Influence: Legislation may be influenced by political agendas and lobbying, potentially leading to biased or unbalanced laws.

• Over-Regulation: There is a risk of over-regulation, where excessive laws create burdensome compliance requirements for individuals and businesses.

Conclusion:

Both judicial precedent (stare decisis) and legislation are crucial sources of law, each with its strengths and weaknesses. Judicial precedent provides consistency and stability, allowing the law to develop through case-by-case adjudication. However, it can also be rigid and complex. Legislation, on the other hand, offers clarity, democratic legitimacy, and flexibility, but can be influenced by political considerations and may result in over-regulation. Together, these sources of law complement each other, ensuring a balanced and dynamic legal system that can adapt to changing societal needs while maintaining stability and predictability.