The Doctrine Of Precedent And The Human Rights Act 1998 ( Hra ) And Alternative Dispute Resolution

The source of law known as a judicial precedent (also known as a common law or case made law) is a form of Law that requires no legislation as it is considered on a case by case basis based upon the principal of ‘Stare Decisis’. The Stare decisis is

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.

Stare decisis “to let the decision stand” operates in a pyramid-type fashion and is the doctrine that judicial decisions stand as precedent for cases arising in the future. It is a fundamental policy of our law that, except in unusual circumstances, a court’s determination on a point of law will be followed by courts of the same or lower rank in later cases presenting the same legal issue, even though different parties are involved and any years have elapsed.

Historically, common law emphasized the importance of judicial decisions rather than utilizing the structure of codes, legal rules, and statutes as courts do today. In the past, judges documented and issued their decisions which were later circulated from one court to another and became known as common law. In cases where parties disagreed, common law court would look at previous decisions made in related cases and incorporate those decisions into the current case (Siegel, et al., 2011). If similar disputes had been resolved in the previous case, the court would utilize the same perspective to resolve their current case. This became known as precedent and like common law, continues to be utilized in today’s court system (Siegel, et al., 2011).

while at the same time not talk over the reader’s head or bore them to death with legal writing. Mr. Forsythe has collected original research that has exposed new pieces of evidences about important problems dealing with the legal reasoning choices and the pieces of evidences mentioned in the people’s majority opinions.

When a decision is made for a new dispute, in a common law system, the judgement is passed as a precedent. A precedent is a verdict made by legal authorities for a principle or rule that provides guidance for any future cases having similar issues. Precedents are supported by the doctrine of precedent also known as ‘stare decisis’. ‘Stare decisis’ is a Latin term translating to ‘the decision stands’. This doctrine is a legal principle that judges are obliged to follow and respect (Milgate P, 2013). This implies, that any future cases with similar circumstances should have the same verdict (punishment/decision etc.) as the precedent. Precedents are followed to ensure fair treatment and so that law is developed in a consistent manner providing older cases with the authority and structure for current judges to make their decisions. When there is no precedent a decision is met through existing statute laws

The Supreme Court, which does overrule its precedent from time to time, does not need to do a lengthy analysis of each precedent’s viability in every case. Rather, through its certiorari jurisdiction (certiorari – an order by which a higher court reviews a decision of a lower court), it selects cases and issues that allow it to reconsider precedent on its own time. When the Court decides that a previous decision may be in jeopardy, it often asks the parties to brief whether precedent should be overruled.4 The Court must still confront petitions questioning precedent, but it can dispose of these quickly and without explanation if it so chooses through a simple denial of certiorari. This shows that horizontal stare decisis is upheld in the

One of the tenets of law has always been the ideal that Parliament is wholly sovereign, being the conclusive controlling factor on which the United Kingdom constitution is based. Yet not all ideals are taken and translated into reality. The statement from Lord Hope in R (Jackson) v AG challenges the sovereignty of Parliament, by demonstrating that there may be limits to Parliamentary sovereignty of which can be seen through the proceedings of the R (Jackson) v AG case, Thoburn v Sunderland City Council, and HS2. Whilst conclusively determining that the rule of law is the ultimate controlling fact on which the United Kingdom’s constitution is based. Although counter-arguments can be taken from this statement and the appropriate cases, of which

One of the success of the Humans Rights Act is that, the judges have developed new principles of public law. For example, ‘proportionality’ principle for deciding matters of judicial review in R v Secretary of State for the Home Department (2001); and ruling that the home secretary,

The doctrine of precedent is when judges are deciding cases they must look at past judicial decisions especially when cases have similar facts, this means that judges may have to seriously consider the reasoning of judges in past cases even if they are not bound to do so (Harding 2013). The precedent is a legal rule or principle that determines the outcome of the case, to be binding the precedent must be determined if it is relevant to the case by identifying the ratio decidendi; “the reason for the decision” (High Court of Australia 2006). Obiter dicta; “By the way’, is not a binding precedent however, can be used to determine the outcome in future cases (High Court of Australia 2006). The Judiciary is constrained by power through the doctrine of precedent and the law however the judiciary can exercise power by using precedent to achieve justice on cases (Harding 2013). The doctrine of precedent constitutes critical assistance to judicial decision making, the precedent provides both stability and flexibility in developing common law (Ellis 2013). Some constraints on power of the judiciary could include the strict rules of the precedent which could lead to an injustice on individual cases another constraint is the amount of cases reported each year, this could make it difficult to find relevant precedent and laws to follow (Judicial

Finally, positive and genitive aspects of Doctrine of Precedent. What is law? The law has been described as “the cement of the society and an essential medium of change”. . (Trevor Atherton and Trudie Atherton (2011, p.10)

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 Human Rights Act 1998 and Tort Law are seen to be together in “overlapping ways ” as François du Bois explains. In this essay we will begin by looking at the introduction of the Human Rights Act, and the claims in negligence against public authorities. Then we will look at the different views as to the remedies, whether Tort law and the Human Rights Act, should be used together and developed together, or should be used separately in a claim in negligence against a public authority.

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."

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.