This is based on the idea that perhaps judges need to be controlled or restricted with regards to their law making power. This meant that the earlier decision of Davis v Johnson to the effect that Hansard could not be consulted, no longer represented the law and was overruled. 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.
The first one is distinguishing. This can be seen in DPP v Smith. As will be demonstrated, judges use precedent to create new law and extend old principles. However, judges would try to look for the nearest cases to consult.
Lawyers are able to advise clients based on what had gone before, so can speculate to the likely outcome of cases. 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 this case, the House of Lords accepted the decision made by the Court of Appeal that a raping can be established between a husband and a wife. Despite this difficulty, judges nevertheless have to make a decision.
Furthermore, the unsystematic progression of case law adds to the imprecise nature of the development of case law. As an example of an original precedent, there is a famous case Donoghue v.
For example the Court of Appeal could be relevant in many directions, but it is the doctrine of precedent which dictates to us in which courts the decision could be relevant in. The definition of reasonably distinguishable depends on the particular cases and the particular court.
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.
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. Judges, in order to avoid the consequences of an earlier inconvenient decision, which is binding on them in strict practice by distinguishing a case on its facts, or on the point of law involved by using devices.
State of Punjab, AIR SC clarified that what is binding is ratio decidendi, that is, the principle of law applicable to the legal problems disclosed by the facts of the case before the court, this makes clear that the obiter dicta of the Supreme Court is not binding for the lower court.
The appeal court will then substitute its own decision. There are some methods to avoid judicial precedent. This reluctance can also be concluded via a statement made by Lord Cross.
In so doing, raising the controversial issue, do judges make law. This is based on the idea that perhaps judges need to be controlled or restricted with regards to their law making power.
The appeal court will then substitute its own decision.
In order to avoid binding precedents, judges have sought to distinguish cases on differing facts. Persuasive precedent is not binding, but courts may take it in to consideration when considering a particular principle.
The opposing view, that judges do to a certain extent make law seems to be a more accurate description. Generally the Court of Appeal is bound by its past decisions, but there are three exceptions.
More importantly, how the law applies to these facts is scrutinised. For example the Court of Appeal could be relevant in many directions, but it is the doctrine of precedent which dictates to us in which courts the decision could be relevant in.
And the Supreme Court is not obligatory to follow it, so it is clear from forgoing discussion that whether a precedent is authoritative or persuasive, shall depend upon the circumstances and the rank of the court by which it is being issued. The traditional view is that judges merely clarify what the law is, rather than make law.
Or precedent is any set pattern upon which future conduct may be based. Application of judicial precedent is always subject to interpretation if the terminology is vague or ambiguous. One of the most essential elements of English legal system is the doctrine of precedent.
This essay will explain about how the doctrine of precedent operates in the English legal system, and explain when judges Continue reading >The Doctrine of Precedent. Doctrine of Judicial Binding Precedent [Name [Date [ID [Course Number “In truth judges make and change law.
The whole of the common law is judge made”. This is. 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. If one case has decided a point of law then it. THE DOCTRINE OF BINDING PRECEDENT INTRODUCTION The doctrine of binding precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity.
The doctrine of judicial precedent involves an application of the principle of stare decisis i.e., to stand by the decided. Doctrine of Judicial Binding Precedent Essay Sample. This question raises the issue of the role of precedent.
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. A precedent, in the English Law System, is a previous court decision which another court is bound to follow, by deciding a subsequent case in the same way.
The doctrine of binding precedent started under the ruler-ship of King Henry II, in an effort to centralize the administration of justice.Doctrine of judicial binding precedent essay