The extent to which the doctrine of precedent prevents judicial activism

Name

Subject

Professor

Date

The Doctrine of Precedent Prevents Judicial Activism

Introduction

There have been several controversies and opinions on the role of a judge in terms of judicial decisions . These opinions vary from one commentator to another , from one justice to another . For instance Justice Michael Kirby believed that there is a need for judicial activism where the High Court will consider principle and rules that is helpful in the interpretation of laws that are in consonance with the community 's needs

Basically , there are two

binary opinions regarding this . The first school of thought pertains to the doctrine of precedent which advocates the basic principle that fairness in judgment will only be achieved if they are decided alike . In general , the doctrine operates in a process that involves the binding of a lower court to the decisions rendered by higher courts within the same hierarchy . Specifically , the court will have to follow the ratio decidendi and not the obiter dicta of the earlier decision or the precedent decision . This ratio decidendi is composed of the material facts and the rationale of the earlier case that is necessary to resolve the new case . On the other hand , the second school of thought would be the judicial activism which advocates the independence of judges against state policies and principles . According to Michel Foucault , judges should have liberties regarding these subjects . They should be required to reason out and make constructive arguments in to balance out law reform and policy...