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Roles and responsibilities of a judge
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Judicial Precedent.
Introduction.
§ Judicial precedent means the use of decisions made by judges in the past as a source of law, where a similar case arises the past decision is used as a guideline.
§ It is also known as case law.
§ It is a major source of law both today and historically.
§ If law on a particular source of law is not found in legislation - law will be found through common law reasoning.
§ That is to say that if no Act of parliament or Dl to follow then judges look at the past decision of a similar case to find a solution to the case before them
§ The hierarchy of the courts is also important to know as the lower courts must follow the past decisions of the higher courts- also known as biding precedent.
Stare decisis.
§ Jp is known as stare decisis where judges extend and modify existing rules.
§ This means `stand by what has been decided.
§ The system of JP allows for consistency and gives sufficient flexibility for law to develop.
Ration Descidendi.
§ Judge explains his reasons for a decision,
§ States the statement of facts
§ Summarizes the arguments of the lawyers
§ And gives an account of how the decision was reached.
Types of precedent.
1. Declaratory Precedent.
§ Where a point of law has not yet been decided.
§ Decisions will be made to form new precedent for future cases to follow.
§ Therefore judges do have a rolw in making law.
§ However they usually look at cases which are closet in principle- Called Reasoning by Analogy- the judge may decide to use similar rules.
2. Binding Precedent.
§ Only created when the facts of thhe second case are ...
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...w their own past decisions in Addie v Dumbreck.
§ They felt that certainty was the most important feature of English Law.
§ In the Early 70's- Shown in the case of Joned v sec of social services- where an earlier decision in RE Dowling was wrong but refused to change it.
§ However from the 70's onwards they were more willing to use it- Miliangos case and Pepper v Hart.
House of Lords and Criminal Cases.-
Practice statement stated that Criminal law needs to be certain
However it was first used in R V Shivuri which overruled the case of Anderton V Ryan .
**** Also not neglect the fact that, It has been suggested that law cannot be satisfactorily updated by the House of Lords overruling their past decisions- Society demands an more thorough Reform - Meaning legislation rather than Judicial reform.
Brennan (Majority Decision): Justice Brennan read the decision which stated that the ruling from the previous court was not consistent with decisions from other courts regarding the same types of cases (Pembaur v. Cincinnati, 1986).
middle of paper ... ... It was just that the Supreme Court believed that this specific case was unconstitutional. The one thing that I find very interesting is that if the Line Item Veto was found unconstitutional in this case then why is it that the president in the past terms has been able to use the Line Item Veto? This type of veto is still around today, and is still used.
...rts. The Supreme court often get requests to revisit the case, however the supreme regularly declines the offer.
The Pennsylvania Supreme Court held that although the doctrine of stare decisis plays an important role, standing precedent can be abandoned to allow for evolving societal standards of behavior or expectations.
The high court makes judgments on constitutional question and disputes, the high court also resolves conflicts between states and federal government. Its also the final court of appeal.
Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.
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,
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’.
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
that of R v Cox in the same light as R v Brady and Hindley (1966) for
The rule of law as formulated by Raz adds little to a modern democracy as it could apply to both democratic and non-democratic states. The substantive rule of law is unworkable in a system such as exists in the United Kingdom, where the legislature is legally sovereign. Indeed, as both versions of the rule of law have been and could be ignored by the legislature, it is pointless to take the rule of law seriously as a feature of the United Kingdom’s constitution.
The concept “precedent” is an important part of the principles of law established by courts. This concept stated that a case or issue decided by a court can help answer any other future legal questions. It has big implications for the law and surely in decisions affecting the education system. The doctrine that a lower court must follow a precedent is called stare decisis. According to La Morte (2012) “under the doctrine of stare decicis, for instance, a court may stand by precedent and thereby not disturb a settled point of law” (p. 9).
The rule of law is thought to be one of the most fundamental doctrines of the constitution of the whole of the United Kingdom. The distinctive UK‘s constitution has influences previously on the judicial system too. Government and the legal systems in history have both been involved in rules and discretion and most of all the elimination of all discretionary power in which both of these are impossible and unwanted. The rule of law means in one sense, government by the law but obviously government is by the people as well as by the law. As soon as the governing people are added in, the government can’t then be by law on there own. Although the situation is not undoubtedly as the making of particular laws can be guided by open and relatively stable general laws that have been made. For the Rule of Law to have meaning in a democratic society, it has to mean that those who run it have comply with it for it to work; there must be no room for an “ends justifies the means”
(Oxford Dictionaries, n.d. a) defines common law as, ‘the part of English Law that is derived from custom and judicial precedent rather than statutes’. This means that this particular type of law, has developed from traditions and perspectives of the law court, rather than from law passed by Parliament.
It is a decision made by judges on written and unwritten law on relevant issues in an actual case that comes up before them. It may bind others in the similar dispute in the future. The decisions are reported and can be source from Authoritative Law Journals. Judges decided cases following certain accepted principles termed precedents (Black and Bell, 2011). Precedent can be defined as the source of law on determining later cases involving similar facts or issues. Generally, a judge is bound to follow the decision of a previous judge in similar circumstances. A judge’s decision in an earlier and similar case constitutes a precedent, and if that precedent comes from a court superior in the hierarchy to the court in which the present case is being tried, that precedent must be followed. Precedents are decisions reached by their predecessors in earlier similar situations. The types of precedents are Authoritative Precedent, Declaratory precedent, Original precedent, persuasive precedent, distinguishing and overruling. The essence of this doctrine is called Doctrine of ‘Stare Decisis’.