Those tools discussed above only contribute some degree of flexibility. The reversing and overruling can be done by higher court. The later lower court cannot overruling the previous higher court decision but they can decline to follow the precedent if the decision made per incuriam. Reversing will affect the party in that case whereas overruling will only affect the parties in future case. Distinguishing can be done by higher court and lower court but it is only when the facts in both cases are sufficiently dissimilar.
Thus, once judges have the flexibility to extend the old principle or make new definition for the law statement, a more comprehensive law can then be developed in the future. The goal of the legal officials is to give fair claims instead of prosecuting a certain person. However, judges under civil law aim at applying law to prosecute a person and thus, might neglect procedural justice as judgment is more important than procedures when they simply follow the law. Decisions made by the court may not be explained as the judges only apply the law with no restriction to provide academic quality reasons and justice might be arbitrary. It can be concluded that common law in the west is to enforce law rather to solely apply law when compared with civil law.
Judicial review also means that judges sometimes do not have the final say, especially in lower courts. The higher courts have the power to review decisions and set them aside. The grounds are absence of jurisdiction, bias or corruption on the part of the presiding officer, gross irregularity in the proceedings, and the admission of inadmissible evidence. Certain statutes make provision for the decisions of magistrates or other judicial officers to be reviewed automatically by judges, meaning that the review is not initiated by an aggrieved individual but takes place by virtue of a statutory trigger. Judges are obliged to follow a code of ethics or conduct.
Last but not least, judicial precedents provides greater certainty in the law. It is because if judges of the lower courts follow the decisions of cases made by the judges in higher courts, it shows that the judicial system is fair and it treats every individual equally. The disadvantages of judicial precedents are, because there are too many cases in the archives, there is a tendency to overlook some authorities while referring to the cases. Besides that, as mentioned above, it is difficult to differentiate between ratio decidendi and obiter dicta because judges do not deliberately mention which is which while delivering judgment. Lastly, because judges are not voted and appointed by the general public unlike the members of Parliament who are representatives of the people, they may not know the needs of the people when making case
I agree with Alexy-Radbruch that law that is promulgated and legally valid in the institutional sense is, more often than not, Law. By virtue of fulfilling all the legal validity requirements, a law has an inherent value of legal certainty which bestows upon the law the status of Law. However this is minimum but not always sufficient condition.
It is necessary to break down these elements to understand the need for a fair trial. In spite of the need for judges to exercise their professional responsibilities in true independence, it is often seen that various pressure from outside comprises their ability to do so. The independence
This is crucial in order to allow laws to meet societies ever-changing needs. Finally, the rule of adjudication is what Hart believes allows judges to interpret cases which are considered ambiguous by using their own discretion. Whilst this can apply to cases which are not covered by any current laws, this also poses an issue regarding the Separation of Powers raising concerns about the applicability of the theory in the UK government. Additionally, leaving decisions to be made without any guidelines for cases that are not
Although the existence of moral obligation cannot be denied, the question as to whether we have moral obligation to legal norms is controversial. It seems quite true that there is no moral obligation to obey a law simply because it is a law. However, I agree that laws have an important function of social stability and order, in determining what is just and moral. This also brings cases where certain action is not immoral in itself, but laws could make it so. I was especially persuaded by the Raz's claim that the reasons for obeying the law must come from the reasons for having that law.
What is Judicial Activism? Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Legislature, rather than limiting itself to the powers traditionally given to the judiciary.
However, the advantages bring certainty which allows legal professionals to give more helpful advice such as merits of case and outcome of case regarding the law to their clients. Fairness, so like cases can be dealt with in a similar way and allows parties to have access to justice and the courts. Flexibility allows the changing of law with time. Three disadvantages includes: Rigidity in the legal process that may spring from the Judge’s attitude and the declaratory theory. However, the reported cases complexity may also be a disadvantage because it makes the location of legal principles difficult to attend to.