Week 1 Binding vs. Persuasive Authority
Binding and Persuasive authority are two types of processes courts follow when deciding a case. This paper will provide a definition of these two types of authority. Differences between the two modes of decision making will also be discussed. Finally, an explanation and examples will be provided to illustrate when each application of authority should be used.
Binding Authority
Binding authority is defined as a source of law a court is required to follow when ruling on case. Constitutions, statutes, and regulations that are applicable to the case are all forms of binding authorities. Controlling precedents can also be used by a court as binding authority when rendering a decision on a case. A precedent
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Advantages to the use of precedents include continuity, clarity, and stability. Continuity is established by the groundwork established by previous court decisions. Prior decisions provide a baseline of rationale that can be used if the case follows the same line of thinking as the precedent. Precedents also establish clarity to people in society. The use of judicial precedent provides easy to understand guidelines and decreases the likelihood a decision is ruled as unfair. The above advantages naturally lead to a more stable society which may explain the reason the application of common law principles have stood the test of time. (ConnectUs, …show more content…
An appeal is filed on the basis that the previous court has made an error in application of the law. (Miller, 2017) An example of a case in which precedent was overturned upon appeal is Brown v. Board of Education of Topeka 347 U.S. 483 (1954). The decision rendered in this case overturned the “separate but equal” doctrine set forth by Plessy v. Ferguson 163 U. S. 537(1896). The court ruled the previous application of the 14th Amendment was incorrect and segregation did not provide equal protection under the law when applied to education. (Brown v. Board,
Common law is the law made by judges when deciding a certain case before the court. The reasoning the judge applies becomes a precedent, to be followed by other lower courts in future matters of similarity. This is the basis for the doctrine of precedent. A precedent is either a binding precedent, the reason for a decision of a higher court that must be followed by a court of lower status in the same hierarchy; or a persuasive precedent, meaning a reason for a decision of another court that is not binding, and should only be considered for its persuasive value. It is the role of the judge in the common law system to develop and expand the common law where he or she sees fit. It is paramount for judges to base their decisions on cases on judicial precedents. The system of precedent can only operate effectively if the respective precedents are recorded. From as early as the beginning of the sixteenth century, judges produced significant cases in law reports. This process still occurs today, but is now systemised and is controlled by Councils of Legal Education in each jurisdiction (Williams 1998).
first look at the validity of the court and of the entity of authority itself.
My dad and I go hunting every weekend during deer season which is from mid of Novmber to the first of Janurary.We go sit at 6:00am and we leave at 8:00am,but why we sit we will be wacthing birds and squirrals playing in the place we have corn they will eat it like deer does.We half to sit still were the deer can’t see us in the deer stand.When we go hunting you have to climb up in the deer stand and then sit patiertly to wait for something to come out of the woods.We look three or four different way in the stand.”My dad stated,” theres a deer.We go hunting in Pearson Georgia.When we go hunting we have to be careful because the gun could go off.It could be dangous going hunting by yourself.But if anything happen I can help him.Because we
The strange life and death of Christopher McCandless is an enigma. After disappearing for 2 years, McCandless was found dead at age twenty-four in the Alaskan wilderness, the world stunned on why an affluent young man with a bright future would give it all up to live in seclusion in the wilderness. In his book Into the Wild, Jon Krakauer theorizes the motivations of McCandless and why a seemingly sane person would take such dangerous risks. Krakauer’s major theories of why McCandless did what he did revolve around a singular idea: freedom. Krakauer uses McCandless’s change of identity and wilderness adventures to symbolize freedom and self-expression.
The valid point is concerned with Goodhart’s article “Determining the Ratio Decidedi of a Case. Simpson accepts the Goodhart theory proposition that ‘‘the ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon.” He points out that there is an opposed theory, which maybe conveniently called ‘classical theory’ which is that “the ratio is ‘the principle of law which the judge considered necessary to his decision.’’ The Supreme Court’s approach to the illegality defence in decisions, bringing tension in judicial decision between the need for legal certainty and need to achieve fair result. Therefore, quantitative research on whether extra-legal factors influenced judicial decision making has found no universally applicable answers as some variables can explain certain judicial behaviour in some situations but, both in others. When interpreting and applying legislations, to decided case, especially when cases involve ambiguous aspect of a statute which is statutory interpretation; which over time, various methods and construction has fallen in and out of favour including the primary rules (literal,mischief
“Just One More Game…: Angry Birds, Farmville, and Other Hyper Addictive Stupid Games” summarizes what today’s society focuses on. Sam Anderson, the writer of this essay, talks about his viewpoint on the impact of video games and smart phone games on our society.
The purpose of a persuasive text is to change or alter the viewpoint of the reader for it to agree with the author’s perspective. The intention of this specific text is to persuade the reader to help end poverty today by joining ‘Make Poverty History’ and it uses persuasive language and techniques to do this – this essay will explain the effect on the reader and will focus on analysing persuasive language.
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
According to the text , Social Psychology, “social psychology is the scientific study of how people think about, influence, and relate to one another”(pg. 4) this is viewed in a variety of social topics incorporating group behaviors, attitudes, conformity, obedience to authority, stereotypes and peer pressure. Outside factors can have a positive or negative affect our view of ourselves and each other. These outside factors are used to persuade and influence group behavior. Persuasion is defined as “the process by which a message induces change in beliefs, attitudes, or behaviors” (Myers, 2010, pg. 230). The principles of this process of persuasion according to researchers, Robert Cialdini and Thomas Davidson, are attractiveness and likeability, reciprocity, social proof, consistency, authority, and scarcity (Davidson, 2008)(Myers, 2010, pg. 237). These principles of persuasion impact our self-perception, our attitudes and behaviors, and our culture.
“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 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…
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...