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An assay on judicial precedent
The english legal system and law reform
The english legal system and law reform
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This essay will examine the doctrine of Judicial precedent that helps form the English Legal System. It will illustrate various views that have been raised by Judges and relating cases to the use of ‘Stare decisis’ when creating precedents. In addition it will discuss how the developments in the powers of the courts now also allow them to depart from these precedents to an extent.
The doctrine of Judicial precedent applies the principles of stare decisis which ‘lets the decision stand’. ‘Whenever a new problem arises in law the final decision forms a rule to be followed in all similar cases, making the law more predictable’ making it easier for people to live within the law.
An original precedent is where a point of law is decided for the first time. This was illustrated in Donoghue v Stevenson where there was a decomposing snail in a bottle of ginger beer. The House of Lords set a precedent that manufacturers owe a duty of care to customers in the law of negligence.
A key factor of judicial precedents usually refers to decisions of a higher court being binding upon a lower court in the hierarchical structure of the courts. This is best illustrated in Donoghue v Stevenson . However, if the previous decision was made by a court of equal or higher status to the court deciding the new case, then the Judge should follow the rule of law set in the earlier case. These are known as Binding precedents.
The courts access these previous judgements through the system of Law reporting. The system of precedents could not work without a precise and comprehensive compilation of the key decisions of superior courts readily available to all who need them. Authoritative reports compiled by legally qualified law reporters are formed prima...
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... law to be developed without need for lengthy litigation. Nonetheless, a change in law needs to be brought before the relevant court. This usually means litigants for the Court of Appeal or the House of Lords do not necessarily have the means to take their cases that far.
In conclusion, the doctrine of judicial precedent has been accepted to form our legal system, through the use of binding precedents. It has helped the law maintain certainty yet through flexibility of the courts and exceptions to depart from precedents the law has continued to develop in a just manner.
Works Cited
Penny Darbyshire, Darvyshire on the English Legal System, Ninth edition.
Terence Ingman, The English Legal Process, Eleventh edition.
Catherine Elliott Frances Quinn, English Legal System, Seventh edition.
Gary Slapper and Davis Kelly, The English Legal System, Tenth edition.
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.
Stare decisis comes from the Latin language and it means “to stand on decided cases.” Stare decisis is a flexible doctrine of the court, recognizing the value of following prior decisions or precedents in cases similar to the one before the court. The courts practice of being consistent with prior decision based on similar facts. This doctrine had become so fundamental to the development of ...
The last model of the judicial decision making is the legal model. The legal model assumes that judges give in to the law when making decisions. If a judge has any personal preferences for an outcome in a case, it is assumed that he or she leaves these preferences aside and defers to the facts of the case or legal standard when making his or her decision.
In the video engager, Dr. Kristina Mitchell explains the three different models of judicial decision making; these models include the legal model, the attitudinal model, and the strategic model. The legal model is when the Supreme Court Justices make their decisions based off of fact of case, laws, and precedents. A precedent is a previous case that deals with the an issue that had been discussed before by the Supreme Court. Essentially, the justices would use the information from previous cases to help them to decide on the case at hand. The weakness of the legal model is that basing the decisions off of previous cases would mean even though the world is moving forward, and times and opinions are changing, we are using things from the past to aid in decision making. However, a strength of using this model is using the past to help see how people will react to the decision made and determining if the precedent’s ruling was positive or negative. The Attitudinal model is based off of the fact that the Justices serve for life, unless they are impeached or convicted so the justices have no constraint on their decision making. This model explains that Justices make decisions
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
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.
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
Legal precedent and stare decisis are two parts of the common law or case law; there is no federal or criminal common law. Legal precedent is a decision that is made in court that could help for deciding outcomes of comparable cases in the future. These decisions are made by trial judges and appellate court judges.
A major impediment of the common is the tendency to lead to perpetuity of bad decisions once a precedent has been set. If there is no amendment and the same ruling is applied, that bad decision will be subsist and will be perpetuated. Since the common law system revolves around following antecedents, it usually takes a long while for change to occur. Unfortunately, before this change is effected, the bad decision will be upheld as long as the change does not come into effect. This is one area where the codified system of law has an advantage as it is rules based approach to law making designed to provide a comprehensive code of laws for the area in question.
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
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’.
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...