Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’. “A Binding Precedent is a decided case which a court must follow even though it is considered to have been wrongly decided…” (Terence Ingman, 2002, Page 420). “A Persuasive Precedent is one which is not absolutely binding on a court but which may be applied” (Terence Ingman, 2002, Page 420) Bromley London Borough Council V Greater London Council (1982), Searose Ltd V Seatrain (UK) Ltd (1981). There are certain elements that Judicial Precedent is dependant upon, they are that the material facts of the case must be the same, the principle must be a proposition of law, it must form part of the Ratio (see below) and that there has to be sufficient and accurate reports of earlier decisions. There are six main elements to the Doctrine of Judicial Precedent which are as follows:- Ratio Decidendi (Ratio): The reason for deciding, this is known as the legal reason for a Judges decision, the Ratio of a case although it can sometimes be somewhat difficult to interpret it is a fundamental part of the Doctrine itself Hedley Byrne and Co. Ltd V Heller and Partners Ltd (1964), Rondel V Worsley (1969).
Questions Presented: This is where the legal issues are stated that the party would like for the appellate court to think about and make a final decision (Statsky, pg. 545).
9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
Under Article III of the Constitution the judicial branch was established, but rather implicit in proportion to the other two branches of government. This ambiguity allocates various opportunities for interpretation of judicial power. In Federalist 78, Alexander Hamilton addresses the role of the judiciary branch within the federal government in regards to political immunity of judges through life tenure and contribution to checks and balances through power or judicial review. Chief Justice John Marshall, in his ruling of Marbury v. Madison, established the principle of judicial review advocated by Hamilton in the Federalist Papers. Originally designated as the weakest of the three branches in government by the framers of the Constitution, the Judiciary has accumulated an increase in political influence through judiciary review and has proven to be an essential institution in the separation of powers as well as an active participant in the system of checks and balances.
An important point to keep in mind is that all binding decisions are initiated at the highest court at either the federal or state level. These decisions are precedent only in the jurisdiction where the court presides. Stare decisis refers to the practice of the courts adhering to previously rendered decisions. This is especially true involving United States Supreme Court decisions that have binding authority on both the federal and the state courts. Remember that court decisions in the same jurisdiction only have persuasive authority which is not binding.
of law that has been used to base his decision on. This is called the
all judiciary cases in which any fact is involved,) or may they act by representatives, freely and
Facts: Two residents of Virginia, Mildred Jeter a colored woman and Richard Loving a white man, got married in the District of Columbia. The Loving's returned to Virginia and established their marriage. The Caroline court issued an indictment charging the Loving's with violating Virginia's ban on interracial marriages. The state decides, who can and cannot get married. The Loving's were convicted of violating 20-55 of Virginia's code.
Something more common is stare decisis, which is a type of methodology, and common law that they use along with interpreting the constitution. It is used so judges have some type of consistency and are bound to their past decisions. Stare decisis there are four primary reasons to follow it, it treats cases the the same, makes the law more predictable, strengthens judicial decision making and furthers stability (Oldfather, 2014). This is important in regards to constitutional interpretation because it is basically saying that judge is also bound to past constitutional interpretation. Some of the precedents produced by stare decisis are bad, but that’s because the system is not perfect. The implementation of precedence is also complicated because you have to find cases that are sufficiently alike and most cases are not identical (Oldfather, 2014). Another significant factor in stare decisis, is that the courts usually feel more comfortable in overruling constitutional precedents than amending the constitution, which is much more difficult. Stare decisis is commonly used in adjudication, probably the most prominent articulation of it was in Planned Parenthood v. Casey, where they analyzed if they wanted to overturn Roe v. Wade, in terms of its workability (Oldfather,
There are different types of precedent; original, binding and persuasive. Original precedent is a point of law where a new case that hasn't been decided on in the past. In these cases the judge would look at cases that appear closest, the judge would use the case to reason by. analogy. The.
1.The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is clear way of distinguishing the ratio of a case…
One such case is R v Rimmington (2006) where Lord Bingham said that conduct forbidden by law should be clearly indicated so that a person is capable of knowing that it is wrong before he does it and that nobody should be punished for doing something which was not a criminal offence when it was done. Moreover Lord Bingham and Lord Walker in the Privy Council decision in Sharma v Brown-Antoine (2007) said that the rule of law requires that, subject to any legal immunity or exemption, the law should be even-handed and apply to all
The given statement suggests that the emphasis on judicial diversity is unnecessary since there is no guarantee that a diverse judiciary would arrive at a different decision than that of a conservative judiciary. This essay attempts to argue that although there is no evidence that a diverse bench would radically change the outcome of a given case, the quality of justice will be substantially enhanced by the inclusion of a range of perspectives from which are currently not represented by the English judiciary.
The grounds of judicial review help judges uphold constitutional principles by, ensuring discretionary power of public bodies correspond with inter alia the rule of law. I will discuss the grounds of illegality, irrationality and proportionality in relation to examining what case law reveals about the purpose and effect these grounds.
Judicial Precedent "Within the present system of precedent in the English legal system, judges have very little discretion in their decision making." Judges have always been relied upon to interpret and apply the law. Therefore, their decisions should be fair and consistent so as the individuals seeking legal remedies would have more faith in the judicial system of the state. AS the UK has not a very complete and/or codified constitution, this doctrine is very much relied on as contrasted with other countries which seemed to have provisions for virtually any kind of offence, like France or the US where judges had only to refer to legislation.
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...