Certainty and Flexibility in Judicial Precedent Essay

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It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious. The problem is that these two concepts of judicial precedent are seen as working against each other and not in tandem. There is proof, however, that as contrasting as they are on the surface they are actually working together to achieve one common goal.
Judicial precedent in its broad definition is the process by which judges follow previously decided cases to aid in their decision providing that the facts are sufficiently similar. The doctrine of judicial precedent seeks to provide consistency and predictability in law by virtue of the application of the principle of …show more content…
Although judicial precedent is binding, it is no way absurdly rigid to the extent where it becomes nonsensical. Through judicial precedent judges are afforded the opportunity avoid precedents; this is where the principle becomes flexible. There are four ways of avoiding precedents, these are distinguishing, overruling, reversing and per incuriam.
Distinguishing is the main tool used to avoid precedents. The principle of distinguishing believes that a case based on its own material facts does not necessarily have to follow a precedent case if the judges wanted to avoid a previous inconvenient decision. This likely when a court holds believes that the facts of the case before are significantly different from those in cited precedents and therefore it will not find itself bound to follow that precedent. Distinguishing is done at the discretion of the judge and some judges may be more inclined to distinguish while others will stick to the precedent no matter how illogical it may seem. Lord Justice Buckley in Olympia Oil v Produce Brokers[1914] stated: “I am unable to adduce any reason to show why that decision which I am about pronounce is right… but I am bound by authority which, of course it is my right to follow. Judges can also overrule a decision. Overruling can only occur in higher courts or as one move up the court hierarchy and may occur
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