Before critically analysing the extent to which the doctrine of judicial precedent affects judicial law making, one must first contemplate what the doctrine of judicial precedent is. The doctrine is a rule that all lower courts are to be bound by the decision or ratio decidendi of the higher courts. As a result of this, cases that are alike are decided in a similar way . However, it is not this simple, as it will be seen throughout this essay that wider circumstances are involved that affect the judicial law making process. Judicial law making (otherwise known as common law) is judge made law rather than law set out in statute. The relationship between the two will be evaluated. Firstly, it is important to outline the types of decisions that are made in courts. Decisions made in the courts are the starting point of the doctrine of judicial precedent because it is these decisions that binds the courts in subsequent cases. This can help the courts but can also hinder them when creating common law principles. Two different types of decision making should then be outlined, these being ‘rule based’ and ‘reason based’ decisions. When a decision is made it can either be made on the strict rules that apply to the situation or on the balance of all relevant reason. Due to the doctrine, lower courts must take the former approach being bound by the rules established in the decisions of the higher courts. Rule based decisions are supported by Sir William Blackstone who observed the
* Case Law/Precedent/STARE DECISIS – Case Law is the doctrines and principles announced in cases. It governs all areas not covered by statutory law or administrative law and is part of our common law tradition. A Precedent is a decision that furnished an example of authority for deciding subsequent cases involving identical or similar legal principles or facts. For example, when a judge is making a ruling on a case, the judge may refer back to a similar case to see what the previous ruling was to keep the result similar. Stare Decisis is the practice of this process, deciding new cases with reference
xiii) Influence of EU ensures that altering UK constitution is hard – cannot be incompatible
27). By following this doctrine of precedent, stare decisis, judges are bound to follow the ratio decidendi, the reasons given, for the rulings in previous cases from higher up in their jurisdictional hierarchy. Rulings from other jurisdictions can also be used as persuasive force and argument, as can the obiter dicta, the judges’ comments other than those given as the reason for the ruling. In this way Judge made law resolves conflict and injustice by ruling consistently with rulings made in previous, characteristically similar cases. An inconsistent approach to similar situations cannot equate to being fair, just or equitable. In this way the ALS is not biased or prejudice, is applied equally to all, and ensures that the law is based on fairness and justice.
Judicial precedent refers to the sources of law where past decisions made by judges create law for future judges to follow. An example would be the Donoghue vs Stevenson case, where Stevenson had bought ginger beer, and Donoghue had drank it after their been a decomposed snail in it, however their was no charge because she was not in a contract with
The statement above said by Lord Bingham, from ‘The Rule of Law’ (2007) 66 (1) Cambridge Law Journal 67-85, p. 76. The statement references that the rule of law is not abided by if the state does not provide human protection. This statement can be looked upon, agreed and disagreed with after reviewing the two theories in the rule of law. This will be made possible, as I compare Joseph Raz’s formal theory and Lord Bingham’s Substantive Theory on the rule of law. But firstly, I will address what the Rule of Law is;
It's referring to precedents. Precedents are previous decisions of the court that need to be followed by courts in the same or lower in the hierarchy. The court must give consideration but there is no rule on how it should apply it to the facts of the case at hand.
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.
It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious. The problem is that these two concepts of judicial precedent are seen as working against each other and not in tandem. There is proof, however, that as contrasting as they are on the surface they are actually working together to achieve one common goal.
It would be impractical for judges to not make law in some situations as both parties in the case would not want the judge to refuse to deal with the case and they would want the matter decided. ‘Judicial decisions are important as a source of law on matters where the government is
Common law is formed on the basis that courts will make decisions based on past judgments (Letwin, 2011). Cases with similar circumstances will be ruled in the saw way. In most cases the common law will combine with statutory and constitutional law in order to make decisions. Common law bases on the fact that court cases will be primarily ruled on precedent (Aspen Publishers, 2010). The common law is crucial to understanding almost all important
The doctrine of judicial precedent is based on the principle of stare decisis which means ‘to stand by what has been decided’. It is a common law principle whereby judges are bound to follow previous decisions in cases where the material facts are sufficiently similar and the earlier decision was made in a court above the current one in the court hierarchy. This doctrine of precedent is extremely strong in English law as it ensures fairness and consistency and it highlights the importance of case law in our legal system. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases."
Rule of law in simplest terms means law rules, that is, law is supreme. The term “Rule of law‟ is derived from the French phrase “la principle de legalite” (the principle of legality) which means a government on principle of law and not of men. Rule of Law is a viable and dynamic concept and, like many other concepts, is not capable of any exact definition. It is used in contradistinction to rule of man. Sir Edward Coke, the Chief Justice in King James I‟s reign is said to be the originator of this principle. However, concrete shape was given to it by Professor A.V. Dicey, for the first time in his book “Law of the Constitution” (1885) in the form of three principles.
The judges in the lower courts are bound to follow previous decision of the higher courts. It is an essential component of the common law as it is important of adequate law reporting. It is a decision of the court used as a source for future decision-making.
In Li CJ’s judgment in A Solicitor v Law Society of Hong Kong [2008] 2 HKC 1, he commented in paragraph 9 that the “rigid and inflexible adherence by this Court to the previous precedents may unduly inhibit the proper development of the law and may cause injustice in individual cases. The great strength of the common law lies in its capacity to develop to meet the changing needs and circumstances of the society in which it functions.” In this essay, this statement would be discussed with reference to the role of the courts and their relationship to the legislature.
“…No matter how plain a women may be if truth and loyalty are stamped upon her face all will be attracted to her...” Anna Eleanor Roosevelt was born on October 11, 2014 in New York City, New York. She was the only the only daughter of Anna Hall and Elliot Roosevelt; she was the middle child in her trio of siblings. Her brothers were Elliot Roosevelt Jr. and Gracie Hall Roosevelt who were the oldest and youngest siblings respectively. The Roosevelt siblings encountered trauma at a young age. Their mother passed away when Eleanor was only eight years old and their father passed away shortly after, when Eleanor just turned