Judicial Precedent Essay

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

4. Administrative tribunals and decision from other common law countries Beside the judicial functions of courts, administrative tribunals are another official bodies that adhere the rights to settle the disputes, and they are established within federal and state jurisdictions. The well-established practice of the doctrine of precedent is also found in the operation of administrative tribunals, where the inferior tribunals follow decisions of superior but those decisions are not necessary carry

Common law reasoning and institutions Study Pack page 11 6 ‘The Judicial Practice of Precedent’ Adam Gearey Staff and students of the University of London External Laws Programme are reminded that copyright subsists in this extract and the work from which it was taken. This copy has been made under a licence from the Copyright Licensing Agency of the UK (www.cla.co.uk). Any digital or printed copy supplied to or made by you under the terms of this licence is for use in connection with this course

The doctrine of precedent, or stare decisis, is a common practice in the common law systems. It states that judges are to follow the court's previous decisions when deciding cases with the same facts. It is simply an ideal of “deciding similar cases in a similar manner”1 so that consistency is maintained when deciding cases. There are a number of advantages and disadvantages in common law systems where judges make the law. In fact, the question of whether judges in common law systems make the law

Introduction 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

will be explained. Lastly a conclusion about amending statutes will be discussed and why this is more beneficial to the courts. Case law involves using legal precedent in order to solve cases that have come to court, “refers to the creation and refinement of law in the course of judicial decisions.” Since “the doctrine of binding precedent, or stare decisis, lies at the heart of the English legal system,” this means that when judges have a case, they will always first check to see if there has been

of this system, is that a large part of the laws are based on courts` precedents. Christopher A. Ford states in his article that courts rare, create laws and he find it controversial. However, it is worth mentioning that the article mainly deals with the american and international judicial discretion. This essay will examine wether it is controversial , and whether it is rare in the english system. Background A precedent is an earlier decision, where there is a legally significant resemblance

for including persuasive authority. In order for the case to be convincing, the case must be identical. Over a period of time, the strength of persuasive authority may change in light of new evidence in various jurisdictions, or even changes in precedents through legislation, over ruling a previous decision or even a superior court reversing their own previous case. To further make a persuasive authority more compelling, it must attempt to show strength through the following; • Level of court – where

judge must take into account human right cases of the European Court of Justice as well as the English law cases. However, it is very different from the other countries law. In contrast, while deciding a case in the UK, judge is bound to apply a judicial precedent of a higher court, based on the previous cases’ judgements and principles known as ratio decidendi (the reason for deciding), rather than being only guided by previous cases like other European Union countries. Based on Martin(2010), The

of Lords’ outlook concerning the doctrine of precedent is reflected in Lord Woolf’s statement in the case of R v Simpson [2003] . The excerpt brings up the practice of the courts, and how the rules of precedent ‘had to be applied bearing in mind that their objective was to assist in the administration of justice’, as well as precedential certainty and flexibility. The dicta used in his lengthy statement leaves space for discussion, such as; the precedent ‘assisting’ the administration of justice, the