The Doctrine Of Judicial Law

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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
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