Get Full Essay Get access to this section to get all help you need with your essay and educational issues.
Get Full Essay Get access to this section to get all help you need with your essay and educational issues. In order to examine the statement, scrutiny of the doctrine of the judicial precedent is required.
Case law is used to describe the collection of reported decisions of the courts, and the principles which stem from them. Lord Macmillan made this observation that the case by case development is superior to those based on hypothetical models.
When cases are examined, the facts of the case are considered. More importantly, how the law applies to these facts is scrutinised.
It is the latter that produces precedent, based on the maxim of stare decisis. Precedent can only operate, if the legal reasons for past decisions are known. It is important to distinguish between the different types of precedent. What is derived from this is, a new precedent for future use.
Binding precedent stems from earlier case law and must be followed. Persuasive precedent is not binding, but courts may take it in to consideration when considering a particular principle.
This is supported by the fact that the sheer volume of decided cases, increases all the time. This continuous nature of the judgements makes it very difficult to distinguish between the ratio decidendi and obiter dicta, as seen in Donoghue v Stephenson.
In order to avoid binding precedents, judges have sought to distinguish cases on differing facts.
This has resulted in a series of illogical distinctions, creating very complex areas of law. The two cases which demonstrate distinguishing are Balfour v Balfour and Merritt v Merritt. Both cases were regarding breach of contract between spouses.
It was held in Balfour that there was no legally binding contract between them. In Merritt, the couple who were estranged at the time of the agreement had a legally enforceable contract.
Furthermore, the unsystematic progression of case law adds to the imprecise nature of the development of case law. Another point to consider is the development of the law goes only as far as the cases brought forward, which has implications for growth in certain areas of the law.
If an area of law in undeveloped or unclear, a decision cannot be made until a case is decided. Yet it is also argued that the current system of precedent is coherent, in the respect to the certainty of decisions.
Lawyers are able to advise clients based on what had gone before, so can speculate to the likely outcome of cases. This certainty in the law also promotes consistency and fairness in the law.
Case law demonstrates that the development of different principles can be very precise and detailed. It can be disputed that the law, is in-fact well illustrated through gradual development.
For example there are many areas of law that owe their existence to judicial law making, such as contract or tort law. Contract in particular still has rules that date back to the nineteenth century. Tort law has been largely shaped by precedent. This is based on the idea that perhaps judges need to be controlled or restricted with regards to their law making power.
In so doing, raising the controversial issue, do judges make law? Historically, the legal system has evolved from sifting through local customs and judicial decisions, thus creating what we now know as the common law.
The traditional view is that judges merely clarify what the law is, rather than make law. The opposing view, that judges do to a certain extent make law seems to be a more accurate description. As will be demonstrated, judges use precedent to create new law and extend old principles.
Application of judicial precedent is always subject to interpretation if the terminology is vague or ambiguous. When interpreting statutes if the wording is not clear then its meaning will need to be interpreted.
The same occurs if it does not cover for all eventualities. This suggests that there is no certainty in the law, as the application of law case or statute in instances like this is not automatic. Despite this difficulty, judges nevertheless have to make a decision.
This is illustrated in the case of Re A Children regarding the legality of an operation on Siamese twins. This upholds the view that judges do have to make law in these situations.Essays & Papers Judicial Precedent Essay - Paper Example Judicial Precedent Essay - Part 2 The doctrine of binding precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity - Judicial Precedent Essay introduction.
Essay Topic- Discuss the advantages & disadvantages of following the practice of precedent in a legal sense. Answer: The doctrines of binding precedent is concerned with the importance of case laws in English legal system.
Original precedent concerns a point of law that hasn’t been decided. What is derived from this is, a new precedent for future use. Binding precedent stems from earlier case law and must be followed. Persuasive precedent is not binding, but courts may take it in to consideration when considering a particular principle.
This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers. English Law And Doctrine Called Binding Precedent. A precedent is a judicial decision which contains in itself a principle.
English Law is based on a doctrine called binding precedent. Judicial Precedent (Case Law) Essay Sample. The nature of judicial precedent. In examining the development of our law reference was made to the role played by the judges in its evolution, the common law and equity being the product of judicial reasoning in that they have both evolved through the system of case law whereby law is made for .
Judicial precedent is source of law. A binding precedent is created when the facts of a latter case are sufficiently similar to the facts of a previous case. The doctrine of precedent is often referred to as being a rigid doctrine.
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