The Role of Ratio Decidendi in Judicial Precedent
Ratio decidendi plays a very important role in judicial precedent as
it is the legal principle underlying the decision in a particular
case. Therefore, it creates the precedent for future cases and is
considered the most important part of a judge's speech.
Judicial precedent, which is case law, has been and still is a major
source of law in the English system. The decisions from previous cases
create law for future judges to follow. The English law system is
based on the Latin principle of stare decisis, which means 'stand by
what has been decided and do not unsettle the established,' i.e.
follow the common law, don't try to change it. 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. A case where the judge had to reason by analogy was in 1995,
the case was Hunter and others V Canary Wharf Ltd. The case was about
a 250m high tower that Hunter said caused interference with television
reception. A decision needed to be made as to whether the tower did
cause problems, but because this was an unusual case the judge didn't
have a directly related ratio decidendi to refer to and so he found a
case with a similarity. The judge found a case from 1611 and came to
the judgment that interference with television broadcasts was
analogous to blocking a view out of a window. He also said that
television wasn't a necessity and so ruled that Canary Wharf Ltd
weren't liable.
Binding precedent is where a judge is forced to follow a decision even
if he/she doesn't agree with it. However, the case must be adequately
similar and the previous case should have been heard in a court either
on the same level or higher.
If there is a case similar to another but it has been heard in a lower
Fraud is one of Canada's most severe acts of financial criminality as the economic impact of this crime could potentially handicap an entire society. According to the Canadian Anti-Fraud Centre Annual Statistic Report (CAFC), a report established to monitor fraud with the aid of the Royal Canadian Mounted Police (RCMP), and Competition Bureau of Canada, it reported an annual loss of 74 million dollars affecting over 14,472 victims (Canadian Anti-Fraud Centre, 2014). Given this alarming statistic, it is worrisome that we as a society still ignore or turn a blind eye towards those who commit fraud as seen in the low conviction (Canada Revenue Agency, 2014), and focus our efforts on petty thefts as seen with the high rate of convictions
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.
Judicial Restraint- judges should decide cases on the basis of the original intent of those who wrote the Constitution
...t at the same time they are different so they should be treated like they were the very first case so that it is not compared to previous cases.
The Supreme Court of Canada although is considered to be one of the most virtuous places for justice, but in some cases the law seems to take the wrong decisions, which very often affects the citizens of Canada and its states. In this following assignment the researcher is going to discuss on such a decision that had been taken by Supreme Court of Canada, popularly known as the Bliss v. Attorney General of Canada which seemed to be a direct attack on the pregnant women, working in the different sectors. Thereby the court seems in indulging the inequality, and hammering in the federal rights of the people. The researcher here will discuss all the prominent factors of the justice and all the pros and cons of the verdict which may seem to be necessary.
changed in terms of its power of deciding cases. It has on the other hand
I enjoyed reading your analysis of Breyer’s article regarding when courts should participate in the practice of deference. I agree with you regarding your analysis of when courts should practice deference. I would like to add a couple more points to your argument. The Constitution, set up by our founding fathers, gives a system of checks and balances to the government in order to balance the powers among different branches of government. The system of checks and balances that we have, prevents one branch of government from overstepping its bounds. When a court practices deference, they are participating in the system of checks and balances because they are allowing another branch of government to help answer a question that they are
Warren Earl Burger was born September 17th, 1907 in St. Paul, Minnesota. He was of Swiss and German ancestry and served as the 15th Chief Justice to the United States Supreme Court. After graduating from St. Paul College of Law in 1931, the lifelong republican held many various positions in the legal system while working his way to the top. Burger focused mainly in the areas of corporate law, real estate and probate law, while at the same time becoming involved in politics. Furthermore, he was involved in many successful campaigns which brought attention to himself by prominent republicans. His appointment to the U.S Court of Appeals quickly built his background as a law and order judge. Serving in the circuit courts for a mere thirteen years led to his appointment as Chief Justice of the Supreme Court in 1969 by President Richard M. Nixon. Once appointed Chief Justice, Burger presided over numerous cases, Burger’s goals as Chief Justice was to modernize and streamline the courts to make them more accessible and functional, along with originating the idea of employing professional court administrators, implementing continuing education for judges, and improving coordination between federal and state courts, in addition to being noted for his outspoken criticism of ill-prepared litigators who used the jobs as a way of on-the-job training (Facts, 1996). While serving in the Supreme Court, Justice Burger was involved in many important cases.
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.
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 significant impact Robert Dahl’s article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker” created for our thought on the Supreme Court it that it thoroughly paved the way towards exemplifying the relationship between public opinion and the United States Supreme Court. Dahl significantly was able to provide linkages between the Supreme Court and the environment that surrounds it in order for others to better understand the fundamental aspects that link the two together and explore possible reasoning and potential outcomes of the Court.
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…
again the problem with this is that not every case is the same and can
Laws and legal system is important to establish a successful and developed country. Judiciary is the primary institution to give maintenance of law and administration of justice. The judiciary is one of the most important organ of government in Malaysia which its main function is to interpret the law which passed by the legislative. It also playing an important role under constitution to ensure the constitutionalism of the land by the conduct of check and balance which uphold the concept of separation of power and rule of law. The judicial branch have power to check on executive on the ground of validity and constitutionality of law by exercise of judicial review. Article 128 clearly provided the power to the court to strike out any law made by the Parliament or by the Legislature as invalid if they are contradict with the Constitution of the land.