'The principle of binding precedent is too inflexible and stifles the Essay

'The principle of binding precedent is too inflexible and stifles the development of the law. It should be abolished.' Discu - Essay Example Similarly if the binding precedent was one that allows for same sex marriages the judge would have to rule in favour of that statute regardless of their own personally held belief to the contrary2. This principal has been followed in jurisprudence in all of the countries that follow the precepts of common law3. There are a couple of situations that must obtain where the Binding Precedent has to be followed. The first is that the courts accept the hierarchy that is in place and the superiority of the court or judge that ruled in the binding precedent. The level of the court can also be the same as the one hearing the latter case. The second situation is that the material facts of law in the latter case must be similar or be based on the same principle as the matter in the original precedent. Binding precedents, as a whole, are usually covered by the doctrine or principle of the Latin maxim: Stare Decisiset Non QueitaMovere which in its most literal translation means â€Å"stand by th e decision and do not unsettle the established†. ... The first of such reasons is for the efficiency that the use of device of binding precedentaffords as well as the savings in time and resources in the deliberation and ruling on a matter at hand. The binding precedent does not stifle the development of law but rather improves the efficiency of the application of law. The main principle here being that if each and every judgement was made as a â€Å"fresh† or â€Å"new† ruling, without relying on an kind of precedence then it would result in an arbitrary and unnecessary delay in the judicial decision-making process. The use of the binding precedent therefore results in a much faster and more efficient administration of justice and employs this time-saving device in a way that results in a faster and more efficient legal process. If a similar matter has been heard and determined during a previous time and most probably by a court of higher authority there really is no reason why a lower court should not dispense of the de cision in quicker fashion by accepting the precedent. The binding precedent also provides the administration of justice with a certain degree of certainty. It allows litigants to approach the courts with a certainty that all things being equal then the balance of justice would be the same regardless of the time and place of its actual implementation4. The binding precedent means that lawyers can advise their clients with confidence and certainty on matters of legal principle knowing that the previously existing authorities will be able to bear them out and results in a greater confidence in the law by those that pursue claims through the court process. Binding precedent ensures that the lesson learnt in previous judgements and ruling is therefore consistently and similarly applied in future and that