Judicial Precedent
The doctrine of Judicial Precedent is based on the doctrine of Stare Decisis. The doctrine of stare decisis was adopted by England and Wales. Judicial precedent means the procedure whereby judges take after already chosen situations where the actualities are of adequate closeness. The doctrine of judicial precedent comprises of an application of the principle of stare decisis, which means to stand by previous decisions’. Practically speaking, this implies second-rate courts are certain to apply the lawful standards set around predominant courts in prior cases. This gives consistency and predictability in the law. For example in the case of Donoghue v Stevenson [1932], the House of Lords held that a manufacturer owed a duty
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Over-ruling prior precedent emerges where a court chooses in a later case that the legal ruling in a prior case was not appropriately applied or was no longer suitable. Over-ruling may happen in situations when the higher court over-rules the verdict made by a lower court in a prior case, such as the Supreme Court changing the decision made by the Court of Appeal in a previous case. It can also occur at instances where the European Court of Justice chooses to over-rule a past decision, as well as at a point where the Supreme Court chooses to practice its discretion and declare one of its own prior choices to be no longer a law and over-rules it. This instance can be seen in the cases of Pepper v Hart (1993) and Davis v Johnson (1979) where the House of Lords used the principle of over-ruling using its authority under the Practice Statement 1996. Reversing is the overturning of an appeal by a higher court, of the choice of the court lower court that is hearing the appeal. The appeal court would then substitute with its own particular …show more content…
This implies that the legal profession can give more accommodating guidance with respect to the law to their clients. The law is predictable, therefore making it easier for clients to have better knowledge about the position of their case, without having to wait until the trial stage. This could lead to possible out of court settlements. Since the judges have to apply a known set of rules it prevents judges from being biased and subjective with their decisions. Drawbacks regarding judicial precedent; does not suit the needs of the dynamic society especially in the UK as it is a part of the European Union. Judicial precedent can also be considered as a process of controlling the judges thereby limiting the judge’s
So if a judge doesn’t agree with the higher courts policy he or she may apply it cautiously or under pressure. When our lower courts get a case with no standard, they will sometime look elsewhere for the direction in determining a case before them (United States Department of State Office of International Information Programs,
The legal system does not follow a precedent instead it deals with each case on the individual level. It
First of all, the court was influenced by outside factors.
Our legal system allows judges to make important decisions on their own, which is a huge responsibility, and if it falls into the wrong hands, there could be severe
Each state is different when it comes to laws, regulations, and their due processing system. The judicial system has evolved over the years, and is not the structure as the framers created. “The system’s reliance on precedent ensures a consistent and stable institution that is still capable of slowly evolving over the years—such as by increasingly reflecting the diverse population it serves” (515). The framers created the concept, but the structure needed to evolve over the years.
Rosenberg first gives rough definitions of the "Dynamic Court" and the "Constrained Court," which he considers the two possible views to be held about the court system's influence, though he believes both are over simplifications by themselves. The "Dynamic Court" sees the judiciary "as powerful, vigorous, and potent proponents of change" (Rosenberg 1991, 2). Proponents this theory alone believe the courts have great power and influence to effect social change, but Rosenberg believes the 'mystification' of the judicial system has given this view more allure than truth. Under the "Constrained Court" theory, courts are "weak, powerless, and ineffective for change," have little power nor influence to
This is one of the arguments I proposed as to why entrenchment is a violation of democracy. Some believe that judges are given too much power when settling disputes and within the scope of democracy, it should not be one person making the decisions, but several. One judge may have different values and beliefs from the rest of society and
The Court’s effectiveness relies on the institutional capacities as well as the ruling’s popularity. When lower-court judges comply with Supreme Court decisions, rulings can have a substantial effect on social policies, as in the case
(Yencken, D. 2008) Australia’s legal and political system meets these criteria. It is yet important to recognise that the rule of law significantly depends on legal precedent for its active upkeep. No government official may violate these limits. No ruler, minister, or political party can tell a judge how to decide a case.
His rulings as a judge will set the precedent and expectation for the people of the district. There are three cases that
Judicial selection is an intriguing topic as there are multiple ways that judges take their seat on the bench. The United States Constitution spells out how federal judges are selected and leaves it up to the individual states to establish their means for selecting judges. In federal courts, judges are appointed and it varies between appointment and election for state courts. The purpose of this paper is to examine the differences between appointments and elections (as well as the multiple types of elections) and to give an opinion as to which is the better alternative. Federal judges are appointed by the President of the United States and are confirmed on the advice and consent of the United States Senate.
[5] Common law works in a different way, the judges rather than the Parliament make common law or ‘judge-made law’. Considering criminal and civil cases, the judges take decisions based on the stare decisis principle (Latin “to stand by things decided”, the legal principle of determining points in litigation according to precedent [4]), deliver rulings and create precedents, thus applying the law to real life situations. Therefore, the value of the precedent is very high in the English Common Law system. The strengths of common law
In the article entitled ‘Determining the Ratio Decidendi of the Case’ by Arthur L. Goodhart, I underwent a roller coaster-like journey on exploring the science behind the nature of a precedent in English law. Goodhart started with the attempt to explain the full meaning of ratio decidendi in the simplest terms. He referred to Sir John Salmond’s definition in which I have interpreted ratio decidendi as the principle of law that is found in a court decision and possesses the authority to be binding. Ratio decidendi should be distinguished from a judicial decision, as the latter is a wider concept and contains the ratio decidendi, whereas the former is a principle that carries the force of law. In another reference, Professor John Chipman Gray
Precedents have a great importance in court’s decision. • Legal Sources: They are known as the instrument through which legal rules, law or principles are established: Legislature: Legislature is an essential part of state established by the parliament consisting of elected officials. Members of parliament present the bill which after thorough discussion approve or reject it. If the bill is approved from parliament, then senates looks through it and approve it with consultation, and it becomes an act. All the acts passed by governing authority can be challenged through judicial
In the said case, the counsel for the appellants tried to argue before the Court of Appeal that the decision in the case Rama Chandran v The Industrial Court of Malaysia & Anor was wrong. Because the court was heard in the Federal Court, the Court of Appeal disagreed. It was also