In the field of law, there is a characterization that has already become a cliché: that in law, two plus two is not necessarily four. It is the same character that is the root cause of many confusions and uncertainties in the court of law. For instance, it is a norm in most situations that while making the rulings, judges use the precedents. The precedents are a point of reference on similar cases in the court of law ( Bricker, 2019). The court system in the United States and most countries in the world is hierarchical. It implies that the lower courts use the past decision made by the high courts while making decisions. However, the high courts and supreme courts in most countries sometimes face difficult situations where they are no records of similar cases or any precedent. How courts reach decisions and rulings in such cases have been subject to considerable controversy. While faced with a situation where there is no precedent, it means that the judge must use their knowledge and discretion to make a decision that will be the precedent in the future. The role of precedent in a court of law is to create a situation for uniform law applicability in the entire legal sector in a country. A precedent or authority in the court of law is the basis of rulings. It is a case that establishes the principles of ruling on similar cases in the future ( Bricker, 2019). The cases must have similar issues and facts to warrant a precedent decision. In the court of law, any decision can be a possibility provided that there are enough pieces of evidence that support the decision. In most cases, many factors influence court decisions, such as political, cultural, and social cultures. Without precedent, there is a high chance that there will be different ways of interpreting the law. Precedents, therefore, act as a focal point of reference. But what about if it is absent, for instance, the case a new case in the legal system?
The court can create a precedent where it does not exist as long as there are majority decisions to back up the new ruling. In many controversial decisions and landmark ruling, such as those in abortions, gay marriages, and many rulings on religion and human rights, empathy, culture, political affiliation, and religion have been key to defining the finale rule of judges ( Butler, 2019). In the lower courts, judges make such decisions based on their knowledge of how they see the situation. The lower courts have to wait for the appellate courts to support or dismiss the rulings. In other cases, judges could look at similar cases from other jurisdictions to help them make decisions. There are some cases where judges can look for opinions and persuasive decisions made by the Privy Council ( Hansen, 2019). In such cases, the judges cannot rely on them so much because they are the persuasive based opinions that are one-sided. However, they can act as a point of reference and aid in making the ruling. However, the decision in case of situations where there are no precedents should be the role of the judge. However, the high court judges and Supreme Court judges need to approve such decisions.
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In conclusion, the judges need to use their power and knowledge to make decisions when there are no precedents. They can also refer to other documents that can support them, but they should only use them as reference points. The judges from upper courts such as the Court of Appeal and the Supreme Court should approve such decisions and make them precedents.
References
Bricker, A. B. (2019). Is Narrative Essential to the Law?: Precedent, Case Law, and Judicial Emplotment. Law, Culture and the Humanities , 15 (2), 319-331.
Butler, B. E. (2019). Law and Indirect Reports: Citation and Precedent. In Indirect Reports and Pragmatics in the World Languages (pp. 357-369). Springer, Cham.
Hansen, M. (2019). All the President's Lawyers-Problems and Potential Solutions in Prosecuting Presidential Criminal Conduct. Ariz. L. Rev. , 61 , 231.
