Judicial Precedent Essay
"Within the present system of precedent in the English legal system,
judges have very little discretion in their decision making."
Judges have always been relied upon to interpret and apply the law.
Therefore, their decisions should be fair and consistent so as the
individuals seeking legal remedies would have more faith in the
judicial system of the state. AS the UK has not a very complete and/or
codified constitution, this doctrine is very much relied on as
contrasted with other countries which seemed to have provisions for
virtually any kind of offence, like France or the US where judges had
only to refer to legislation.
The doctrine of Judicial Precedent operates based on the principle of
Stare Decisis, inter alia, to stand by past decisions to establish
certainty, fairness and consistency as well as predictability. The
rationale of this doctrine was made by Parke J in the early case of
Mirehouse v Rennell , where Parke J had stated that for the sake
of uniformity, constancy and certainty, judges are not at liberty to
reject or abandon precedents even if they feel that those rules were
not as convenient or reasonable as they would have liked them to be.
Till today, the reasons for its use are still valid in most cases,
thus, the doctrine is regarded as a general rule in the UK.
An example of the doctrine of binding precedent can be seen in the
case of Shaw v. DPP which relates to conspiracy to corrupt public
morals, where the decision was followed by Knuller v. DPP. Although
the doctrine of stare decisis seems quite similar to res judicata,
which also means 'to stand by past decisions', there is a slight
variation. The difference between the two would be that when applying
the res judicata principle, the decisions of the courts will be
binding on future courts unless it is reversed, whilst the doctrine of
stare decisis, established that even if the decision is reversed, past
decisions would nonetheless be binding. It is the general principle
for judges to follow the decisions made by previous judges of the same
or higher rank, when the circumstances and/or material facts of a case
are similar to that of the present, based on the set of principles
previously let down, known as the ratio decidendi.
The ratio decidendi is the main principle and/or legal reason in which
a case is decided, therefore, the principle led down is binding.
However, it must be noted that this should not be applicable for cases
decided per incurium or any other situation where the decision can
only be restricted to its unique facts such as in the cases of R v.
Larsornneur  and Winsar v. Chief Constable of Kent . As
for the obiter dictum, which means 'things said along the way', it is
generally not binding as it is merely some persuasive argument or
Loading: Checking Spelling0%
Is Judicial Precedent an efficient System of Lawmaking?1570 words - 6 pages Is Judicial Precedent an efficient System of Lawmaking? Judicial precedent often referred to as case law, is one of the main sources of English law. Its roots go back to the early common laws of the country. It is based on the Latin maxim Stare decisis et non quieta morvere, which loosely translated means, stand by what has been decided and do not unsettle the established. In order for the judicial precedent system to...
Common Law in Australia Essay1090 words - 4 pages Common law is the law made by judges when deciding a certain case before the court. The reasoning the judge applies becomes a precedent, to be followed by other lower courts in future matters of similarity. This is the basis for the doctrine of precedent. A precedent is either a binding precedent, the reason for a decision of a higher court that must be followed by a court of lower status in the same hierarchy; or a persuasive precedent, meaning...
History and Application of Common Law1873 words - 7 pages 1a) Common Law, also widely known as Case Law, derived from the old English common law, is largely based on precedents, where judicial decisions were already previously made in similar cases where it is used as reference bases or sources of law. Also, common law is not codified, which generally means there is no comprehensive compilation of legal rules and not written in statues [The common law and civil law traditions, 2010:1]. It is during...
Utility of the Jamaican Court Structure855 words - 3 pages Assignment: In no more than two to three pages, explain the utility of the Jamaican court system.The Jamaican Common Law system of jurisprudence has been adopted from English Common Law which is based on the doctrine of judicial precedent, the principle of which the lower courts must follow the decisions of the higher courts, rather than on...
Precedent: This essay looks at all the aspects of precedent with cases to back up the essay.2198 words - 9 pages Judicial Precedent by Anthony HarteJudicial precedent often referred to as case law, is one of the main sources of English law. Its roots go back to the early common laws of the country. It is based on the Latin maxim Stare decisis et non quieta morvere, which loosely translated means, stand by what has been decided and do not unsettle the established.In order...
Marbury vs Madison921 words - 4 pages Marbury vs Madison As the government was newly establishing its stronghold on the nation, forging its way to a powerful republic and instituting precedents for the future, a struggle to preserve the foundations of American Society instituted by Washington and John Adams existed as Thomas Jefferson took office. In an attempt to maintain the “edifice of the National Government” believing Jefferson would topple the prestigious nation with his...
The Difference between Judicial Activism and Judicial Restraint846 words - 3 pages The Difference between Judicial Activism and Judicial Restraint Our American judiciary branch of the federal government has contributed and molded our American beliefs in this great nation. This branch of government is respected because of the code of conduct that the judges, no matter how conservative or liberal. The language of the court as well as the uniform of the cloaks that judges wear has most probably contributed towards this...
Judges' Need to Follow Previous Precedent908 words - 4 pages Judges' Need to Follow Previous Precedent The lower courts are bound by the House of Lords so they have to apply their rules as if they were applying a statute. It was decided after the case 'London street tramways v London county council (1898)' that the House of Lords would be bound by its own previous decisions. This was a case during the nineteenth century, during the Victorian times when it was important to be...
Court history and Purpose1140 words - 5 pages Running head: COURT HISTORY AND PURPOSE PAGE \* Arabic 1 COURT HISTORY AND PURPOSE PAGE \* Arabic 2 Court History and PurposeCJA/224 - Introduction to Criminal Court SystemCourt History and PurposeCourts are a critical part of the criminal justice system. They are based on the English common law system and are generally organized in a three-tiered hierarchy. Although all American court...
Discuss with reference to the 'rules' and examples of the operation of precedent and statutory interpretation.1924 words - 8 pages The statement seems at first glance to offer a much generalised and often contested view of the separation of powers embodied in constitutional theory. That is to say that Parliament makes laws and the judiciary as slaves to the rules, should simply apply them to a particular case. This perhaps is what 'ought' to happen, according to the fundamental nature of rules and the impression that word 'rule' renders; i.e. that following a particular...
Influential factors to the growth of Nationalism from 1776 to 1824.935 words - 4 pages Between the years 1776 to 1824 the United States began having several nationalistic tendencies. Such tendencies were triggered by the ideals of presidents, Chief Justice, John Marshall, and by a reaction to hostilities and threats of European countries. The three most influential factors to the growth of this feeling against globalization during the years 1776 to 1824 were economic, diplomatic and judicial.Internal and external...
Show MoreJudicial Precedent
ESSAY: a) Explain and illustrate the operation of the doctrine of judicial precedent. b) How far is it true to say judges are bound by decisions in earlier cases?
Judicial precedent is where the past decisions of the judges create law for future judges to follow. English precedent is based on the Latin, stare decisis, meaning stand by what has been said in the past. This allows the rules system to be consistent: like cases treated alike, and it is just, as people can decide on a course of conduct knowing what the legal consequences will be.
Judicial Precedent can only operate if the legal reasons for past decisions are known, therefore, at the end of the case there will be a…show more content…
This idea of creating new law by analogy can be seen in Hunter v Canary Wharf (1995). The interference with the reception on Hunter's television because of Canary Wharf Tower having been built, was likened to the case of Bland v Molselely (1661), in respect to the loss of a view. The two things were said to be a matter of "delight" and not "necessity" so could not come before the courts.
In England and Wales, the courts have a very rigid doctrine of judicial precedent, which has the effect that every court is bound to follow any decision made by a higher court and that appellate courts are bound by their own decisions. Decisions made in the European Court of Justice bind all other courts since 1973 and can overrule its own decisions. Decisions made in the House of Lords bind all lower courts, especially Court of Appeal, and, since 1966 when it issued a practise statement, can overrule past decisions. This is clearly seen in DPP. NI v Lynch when the House of Lords said that duress could be a defence to a charge of murder, and in R v Howe they said it could not. The Court of Appeal has two divisions, which are both bound by the higher courts but not each other. Each single division is bound by its own previous decisions. Both have the Young v Bristol Aeroplane Exceptions however. Divisional Courts are bound by higher courts and bind lower courts. They are generally binding