Chapter 3: Judicial Precedent
1. Intro
-Judicial Precedent refers to the judges in the earlier cases create law for future judges to follow.
-It is based on principles of stare decisis, involves treating like cases alike which means it only applies to similar facts as it should be treated in the same way.
-However, precedent relies on the court structure and efficient system of law reporting. The lower court is bound by the decision of the higher court.
-It was recommended by 4 Ayers/ Eyers who were judges not to adjudicate but to improve the court system. The principles of stare decisis was adopted from Roman Law with a twist to make it binding in order to get more people to use the court system.
-Judicial Precedent promotes certainty and
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Balfour’s case is just a domestic arrangement between husband and wife but Merritt’s case is a legally binding contract as the couple has lost the trust between each other.
Overruling
-where a court in later case states the legal rule decided in an earlier case is wrong.
-The higher court can overrule the earlier decision made by the lower court or a past decision of its own.
Pepper v Hart (1993)
-The House of Lords overruled its own past decision in Davis v Johnson (1979) which the Hansard could be consulted when the court trying to decide the meaning of certain words in an Act of Parliament.
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.
4. The hierarchy of court
Supreme Court/ House of Lords
-the most senior national court in English Legal System.
Position before
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5. Advantages
-Accessibility to court
Getting more people to settle their disputes in court. It is due to the certainty and predictability of precedent.
-Degree of flexibility
The decision of previous court can be overruling, distinguishing and reversing. The House of Lords can use Practice Statement 1966 to depart its own past decision.
-Original Precedent
The system allows judges to create original precedent if the particular point of law never been decided by previous judges. It is a method to ensure the justice or just decision is achieved.-ReA, Airedale NHS Trust v Bland (1993) 6. Disadvantages
-The system is rigid due to the binding precedent
The bad decision may perpetuated if the higher court did not overrule it.
-There are large number of decided cases in court.
It may be time consuming and lengthen the ligation because the ratio is not easy to find out.
-Retrospective effect
Legislation created by Parliament are prospective whereas the decision decided by court is retrospective which is unfair to the offender.
-Promote laziness
As the job of the judge is only refer to previous decision and does not consider the matter
Our appellate courts will be the ones making the policy, while our trail courts will enforce the policy, it appear that many of the lower courts have more discretion when enforcing the appellate court decisions. Why is this possible many are nonlawyers who do not possess the skills needed to read many of complex judicial decisions, and due in part the decisions of the higher courts as well. Many of the policy are available and the judges are anticipated to read them. When the lower court infers the higher courts decision is based upon different factors, such as the judges on personal policy, their background, alternatively the lower court judge will embrace the higher courts decision while others may not.
Appeals or judicial review are processes that allows courts to supervise and double check the decisions of lower courts and tribunals. Power has been delegated down to the lower courts and especially the tribunals, and we need processes like these to ensure the fair use of power. The most important aspect of this is to offer legal recourse when there has been a legal error or a misuse of power. 3. What is the difference between an adversarial hearing and an inquisitorial
The legal system does not follow a precedent instead it deals with each case on the individual level. It
Court proceeding and judgment change eventually with time. Every case that is heard within the court system might potentially alter court proceedings that follow. The courts up hold the law and make sure that the defense and prosecution abide by it for a clear judgment. After reading Case No. 09-3133 REGINALD MEEKS v. DAVID MCKUNE, and Case No. 05-5049 UNITED STATES OF AMERICA v. CONRAD DOMINIC POOLE, law that protect the defendant are up held in court if there is reason to believe an error in conviction has occurred. If applying to appeal to the court’s decision and it’s valid it will be heard.
Judicial review is a term that refers to a court's review of a decision of a lower court in order to determine whether an error was made. The court has power to pass judgement on the constitutionality of actions of state and federal legislatures and courts. The judicial review has three parts first it allows justice to be served by striking down erroneous decisions by lower counts, second appellate lower courts, third important controversies regarding the law are examined and resolved for the future audience of courts and individuals. Judicial review is a key part of the coexistence of the three
In a modern sense, proper use of Judicial Independence is important because as it says in, "May it Please The Court," on page 74, law is everywhere in modern America. Thus, Americans use law and courts to resolve disputes that are large and small, public and private. Therefore, you can see how Judicial Independence and legal professions in general are important and critical because it can shape and inform relations between individuals and institutions in this country today, as it has for more than 200 years. Therefore when considering Judicial Independence we must understand the critical aspect and importance it represents with regards to adhering to constitutional thought and or
The first is a "judicial" path, which is a direct outcome of judicial decisions such that the social reform occurs as spelled out in the ruling. The other is an "extra-judicial" path, in which the courts "do more than simply change behavior in the short run" (Rosenberg, 6), they accomplish widespread social reform by drawing a light to an issue and actually changing opinions. Extra-judicial efforts are very important for supporting a Dynamic Court, while a Constrained Court relies more on the letter of the law and rulings that follow the judicial
(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.
In this paragraph, the advantages and disadvantages of trial by jury will be discussed. The main advantages are that juries introduce community values into the legal process and can influence the system (Joyce, 2013); they can achieve a sense of equity and fairness without enforcing unjust laws; in addition, juries are independent and neutral (Davies, 2015). Moreover, they guarantee participation from the public in a democratic institution (Hostettler, 2004), and represent the population thanks to the randomness with which jurors are decided (Davies, 2015). On the other hand, the most important disadvantages are that jurors have no prior contact with the courts, no training (Hostettler, 2004) and therefore they lack knowledge of law, courtroom proceedings (Joyce, 2013), and lack of ability to understand the legal directions (Thomas, 2010). Moreover, they must face evidence which is highly technical (Hostettler, 2004).
The law is meant to provide justice to people. So the main advantages of the common law system is that it is consistent, adaptive, equal and independent. Consistency is achieved through the precedent as the base for the decisions, not the personal attitudes of the judges. The parties, involved in the process, are expecting that their case would be decided as the similar one, it creates certainty in getting equal justice and stability. Precedents are usually developed in the higher courts by the senior
It was revealed by a survey carried out by National Consumer Council how unhappy and unsatisfactory people were with the Civil Justice System. The main weaknesses identified were that the system being too slow, too complicated for ordinary people to understand and too outdated and costly. In the continued criticism of the system Lord Woolf was appointed by the government who came up with suggestions and solutions to overcome these problems. As a result Civil Procedure Rules came into force on 26th April 1999 introducing different reforms to the system. The rationale of the reforms was to avoid litigation and promote settlement between the parties at dispute.
The use of ECHR or European Convention on Human Rights in British courts before it was being incorporated into United Kingdom law is an example. UK and any other country which relies to the power of legislation, should always if possible do not conflicts with the international law. Therefore the supremacy of both laws depends on the acceptance if the municipal courts to the international law
STATUTORY INTERPRETATION Statutory interpretation can be defined as a process adopted by the judges or the court to interpret a statute and to apply legislation. In an interpretation there are many ambiguous terms that create a lot of uncertainty in one’s mind and this can only be resolved by judicial interpretation. Interpretation of a statute by a judiciary is important because the common people and the client’s of the lawyer need to know how the judges are interpreting the statute. Judiciary interprets the statue by using three “rules” or “canons” of interpretation.
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
Differences between Parliamentary sovereignty and Constitutional supremacy The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement without parallels in comparative constitutional law. By giving unconditional power to the Westminster Parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the Malaysian Constitution, whose powers are carefully limited by their respective constitutions. Parliamentary sovereignty is thus seen as a unique feature and a result of the unwritten constitution. If parliamentary sovereignty is to be a legal doctrine, it must rely on a list of powers that belong to parliament as an institution. These legal powers are organised in powers and disabilities and are thus both empowering and limiting.