The Nature of Precedent

John Griffith’s thesis asserted that the English judiciary comprises of judges who as a whole are of ‘a unifying attitude of mind, a political position, to protect and conserve certain values and institutions’. Before the Judicial

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.

To be sure, modern laws are made to express the general will, a will that aims at the common good. This means that laws in most cases intend to protect every social member’s rights under the principle of justice and fairness. For telling examples one need to look no further than American judicial system. The access to the two courts systems, one federal court and one state court, provides citizens with the greatest potential to have their legal problems

b. From this, the principle may influential to individual justices that can compare the current case to that of a previous ruling, and in result the justice may choose the same ruling that was given to the similar case.

Nevertheless, some critics argue that the judidicary, some critics argue that the judiciary are the final arbiters of what is meant by the principle of separation of powers, which therefore provides the judiciary with subordinate levels of power. Moreover Chief Justice Hughes concluding that the ‘Constitution is what the judges say it is’ due to ability to interpret the constitution. In America, although Congress may new laws affecting courts, ultimately judges decide.

The rules of precedent themselves are judge made, except where a statute has intervened. Occasionally, judges have to decide on a case where there is

It is easy to see that the legal factors involved are themselves not perfect. Since the Court is made up of human beings who are similarly imperfect, it is not implausible to suppose that the Court likewise

Although there are many cases that are more significant these first cases show the precedent he set. (1)

* 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

Precedent- A legal decision or form of proceeding serving as an authoritative rule or pattern in future similar or analogous cases.

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.

The lower courts are bound by the House of Lords so they have to apply

These commentators concede that the concept ‘lacks precision’ and that its meaning changes over time. Noted legal philosopher Joseph Raz accepted the necessity for State intervention in society and suggests that the rule of law is essentially a means of controlling, limiting and shaping the exercise of discretion in this intervention, rather than seeking to abolish it entirely (Raz, 1977, p195). Raz clearly appreciated the risks associated with the arbitrary and uncontrolled exercise of discretionary power and envisaged the principle of the rule of law as the primary safeguard against that threat.

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."