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.
The Doctrine of Precedent By admin — Posted on November 14, This essay will explain about how the doctrine of precedent operates in the English legal system, and explain when judges are, or are not, bound to follow previous decisions. The first part will define the Ratio Dicidendi, the Stare Decisis and the Obiter Dicta in the English legal system, and the second part will describe the types of precedent and how to operate doctrine of precedent, and how to avoid judicial precedent.
This essay will argue about how the method of distinguishing can be applied by the judge, why it may need to be applied and the problems associated with distinguishing.
Then the essay will discuss about overruling which is where, a higher court decides that the first case was wrongly decided in a subsequent case.
First, the English court hierarchy system consisted five levels of courts. One of the most essential elements of English legal system is the doctrine of precedent. For example, once judges in the Supreme Court or the Court of Appeal make a decision to a case, the lower courts have to follow the decision in the future cases as regards to share similar facts as a binding precedent.
In every cases, judges will provide judgments upon their decisions. Two types of states will be provided in a judgment, which are the Ratio dicidendi and the Obiter dicta. The ratio dicidendi means the reason for the decision. It is the main reason why the judge makes the decision in a case.
The decision would be conducted by the rule of law and, it is a general statement that particular details in each case does not involve. It is set for the precedent in the future case decision to be applied.
An example of the ratio dicidendi, in the case Donoghue v. Stevensona client became ill and suffered personal injury after drinking spoiled ginger beer which was a decomposed snail inside the bottle.
Her claim was successful. Since then, the ratio of Donoghue v. Stevenson brought major promotion to the law of negligence and established the neighbour test. The other statement provided in a judgment is called the Obiter Dicta.
According to the Partingtonthe primary reasoning of the decision does not account by the Obiter Dicta; therefore, the future decisions will not be bundled. Although it is not a part of the precedent, some of the future case can be referred by the Obiter Dicta in order to make the certain view of the law being more persuasive.
Therefore, the judges have the choice to whether follow or not to follow. In this case, one of the landlord decided to receive the half of the rental fee in order to deal with difficulties in finding tenants during the time of Second World War, however, a company had already leased a number of flats for 99 years.
After the war, the landlord wanted the rental fee to be as used to be. The judge Denning J decided that the landlord should take the full rental fee again, and in the obiter dicta of the case, he added that the landlord would have been stopped from demanding, and since this case it has sometimes been decided that if the other party is led to believe they will not rely on strict terms of contract for one party, it is variable.
The original precedent means that there will be a new precedent to be set, as there is no previous decision for the judge to follow until that point of time. It means that there will be new ratio dicidendi to follow when there is a similar future cases.
The judge would give the reason by similarity as there was no earlier decision to follow. However, judges would try to look for the nearest cases to consult. As an example of an original precedent, there is a famous case Donoghue v.
Stevenson which brought a major development on the negligence law. Although there was a concept of a duty of care within particular circumstances, this case extended its appeal and the point of law as Lord Atkins made the precedent as known as the neighbour principle.
The binding precedent is a legal rule made in a superior court of the hierarchy, the rest of courts in hierarchy below the court must follow the rule.
It means that the highest court in the hierarchy, the Supreme Court is liable to every court which includes itself. The example of binding precedent can be found in Gomez case which followed the precedent created in Morris case.
The binding power of Court of Justice over the English Law system can be seen in the case of Pickstone v. The persuasive precedent is more flexible in among three types.Judicial precedent is source of law.
Judicial precedent is the source of law where past decisions create law for judges to refer back to for guidance in future cases.
Precedent is based upon the principle of stare decisis et non quieta movere, more commonly referred to as ‘stare decisis', meaning to . - Judicial Precedent ESSAY: a) Explain and illustrate the operation of the doctrine of judicial precedent.
b) How far is it true to say judges are bound by decisions in earlier cases. A) Judicial precedent is where the past decisions of the judges create law for future judges to follow.
This essay will examine the doctrine of Judicial precedent that helps form the English Legal System. It will illustrate various views that have been raised by Judges and relating cases to the use of ‘Stare decisis’ when creating precedents.
In addition it will discuss how the developments in the. This law of precedent (stare decisis) was founded hundreds of years ago as part of our common law.
The literal translation of stare decisis is "that like cases be decided alike." Precedents in law play a fundamental role in the judicial processes of Canada. Law essay on judicial precedent. Tweet.
Main purpose of a research paper organ donation analytical essay Msc dissertation edinburgh Yale mba essay analysis essay about nicolaus copernicus pictures gender ideology essays on theory fiction and film (personal and professional integrity essay).
Judicial Precedent Essay Judicial Precedent "Within the present system of precedent in the English legal system, judges have very little discretion in their decision making." Judges have always been relied upon to interpret and apply the law.