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Explain how judges can avoid following precedent

While the doctrine of stare decisis generally requires judges to follow precedent and be bound by previous decisions, there are some ways in which judges can avoid following precedent.


Distinguishing the facts: Judges may avoid following precedent by distinguishing the facts of the current case from those of the previous case. If the factual circumstances are significantly different, the judge may argue that the precedent does not apply or is not directly applicable to the present case. By highlighting the distinguishing factors, judges can carve out exceptions to the precedent and reach a different decision.


Overruling precedent: Judges of a higher level court have the power to overrule or overturn a previous precedent established by a lower court. This typically occurs when a higher court reconsiders the reasoning or holding of an earlier decision and decides that it is no longer valid or should be modified. Overruling precedent requires a careful analysis and reasoning to justify departing from the established rule. It often happens when there have been significant changes in societal values, legal principles, or factual understandings.


Reversing precedent: Judges can also avoid following precedent by reversing it within the same court. A court may revisit its own prior decisions and reverse them if it believes they were wrongly decided. This may occur when new evidence or arguments emerge, or when the court determines that the previous decision was based on flawed reasoning or incorrect interpretation of the law.


Distinguishing jurisdiction: Judges may also avoid following precedent by distinguishing the jurisdiction in which the previous decision was made. The reasoning and principles established in one jurisdiction may not be directly applicable or binding in another jurisdiction. Judges may argue that the previous decision does not have persuasive authority or relevance in their jurisdiction, allowing them to reach a different conclusion.


Invoking constitutional considerations: Judges can avoid following precedent by invoking constitutional considerations. If they believe that a previous decision is in conflict with constitutional rights or principles, they may prioritise the constitutional interpretation over the precedent. This can lead to the development of new legal doctrines or interpretations that supersede or modify existing precedent.


Judges are generally cautious in departing from precedent, as stare decisis promotes consistency, predictability, and stability in the law. The avoidance of precedent is typically done sparingly and requires a strong legal justification. The principles of judicial restraint, respect for precedent, and the need for legal certainty play important roles in the decision-making process.


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