Like mentioned statutory law is made by members of parliament, which means elected officials are making laws on behalf of the citizens that elected them in are more likely than judges to know what laws the public wants and needs. Furthermore, judicial precedent or common law is amended by statutory law. Thus, some argue, statutory law is more powerful than judicial precedent, as the former can take precedence or amend the latter. Therefore, statutory law will prevail if there was a contradiction between the two. Additionally, some may argue that a disadvantage of statutory law is that statutes are not made by judges who know the law best, however, it is relevant to note that statutory law goes through a long scrutiny process and most times the acts of parliament that are passed will not be in disservice to the citizens.
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.
WHAT IS RATIO DECIDENDI AND WHAT IS DISTINGUSING? EXPLAIN WITH A COMMON ON THEIR IMPORTANT. Judicial precedent is one of the important sources of law . it is a distinguising features of the english legal system because most of the common law is unwritten and precedent have a binding force on judicial tribunals for deciding similar case in future in continental countries like germany , italy , judicial precedent has only instructive / persuasive value on the other hand in english legal system it has authoritative important . it is in fact a legal source of law which the court are bound to follow.
The term obiter dicta refers to any part of a judgment not forming the ratio decidendi, including dissenting judgments and hypothetical scenarios. While non-binding, obiter dicta may form persuasive precedent in later cases. The court hierarchy is central to the operation of binding precedent. Decisions of higher courts are binding upon those below them in the hierarchy. Thus, decisions of the Court of Appeal bind those courts below it.
The fault in this lies in the motivation behind the justices’ decisions; with judicial activism, it is nearly impossible to view law as objective and free of bias. Many fear that in acting as policy makers, justices bring their own partialities and beliefs into account instead of allowing the literal interpretation of the Constitution guide their decisions. On the other hand, judicial restraint can also be used when deciding cases. Judicial restraint refers to justices interpreting the United States Constitution word for word, keeping from bringing their own beliefs or biases into account and most importantly refraining from assuming the role of policy maker. Under judicial restraint, justices work to uphold the laws that are already in place and to maintain the laws as they stand except in the event that they are blatantly unconstitutional.
Therefore in judicial decision making everything depends on the character of the judge and his state of mind. In commercial questions for example judges enforce the norms of the current socio-economic culture, whether it is socialism or capitalism or any other socio-political theory. It is hard to imagine how the judge would defend the interests of the casual citizen against the communist state, while we can assume that the same judge would defend interests of everyone in a Marxist society. Basically, they do what is best under socioeconomic circumstances of society at that
The court is the one who decides whether the facts of the case are material or otherwise, immaterial. (Goodhart, 1930) What Professor Goodhart means by “the reason which the judge gives for his decision is never the binding part of the precedent” is that a judge’s reasoning for a certain case cannot be a ratio decidendi of the case. This is because it may narrow the principle
Common law system ,as the another side of civil law system which is mainly based on code system,usually applies the earlier case decided by the court decision which laid a legal principle known as doctrine of precedent .Thus, this legal system views decision of the court as a major source of law. Common law system emerged in English and exported around the world wherever British influence dominated.The legal system of the USA,and the “old ”commonwealth countries, are all based on the English common law. The doctrine of precedent which is a fundamental principle of common law legal system means that the judges normally follow the legal rules created by the judge in earlier case where judge have made the legal rule known as precedent.
Introduction “The distinction between morals and law can be formulated very simply. Morality furnishes the criterion for the proper evaluation of our interests; law marks out of limits within which they ought to be confined.” - Korkunov Justice and Rule of Law are perhaps two of the noblest concepts evolved by the wit of the man that survived the test of the time throughout the world. To the Romans, Justice was a goddess whose symbols were a throne that tempests could not shake, a pulse that passion could not stir, eyes that were blind to any feeling of favour or ill-will, and the sword that fell on all offenders with equal certainty and with impartial strength. Ancient Indian culture such as Upanishads and Manusmriti pay a similar tribute to dispensers of justice. Upholding Constitutional morality and judicial values is indispensable to ensure an individual his inalienable fundamental rights.
Through the colonization footprints, British introduced and applied Common law to the colonies. So, Common law tradition impacts most of the Commonwealth Countries’ current legal systems. United States, New Zealand, South Africa, Canada, Australia, Malaysia and Singapore are based on Common law tradition. The Civil law tradition is the oldest and more widely used legal system but it took longer time to develop than the Common law. The Economist (2013) described the origin of Civil law tradition as follow: European rulers drew on Roman law, and in particular a compilation of rules issued by the emperor Justinian in the 6th century that was rediscovered in 11th-century Italy.