What is judicial precedent essay

Many matters would have to be taken into consideration before it can What is judicial precedent essay with certainty what the true reason may have been, such as the circumstances and the facts in the case, the arguments of counsel on both sides and the state of the law at the time when the decision was given.

However, inthe Lord Chancellor issued a statement that in future the House of Lord would not regard itself as bound by its own decisions. This was shown in the case Herrington v British Railways Board which involved the law on duty of care owed to a child trespasser.

But in Bombay High Court in Vasudeo v. The appeal court will then substitute its own decision. An example of this is the case of Hall v Simons where the House of Lords modernised the law and held that barristers could be held accountable for negligently presenting a case in court.

House of Lords is the highest Court in England, its decisions bind all the inferior courts, the House of Lords itself is bound by its own previous decision but this position after a long controversy and various debates become change after the famous classic case. Judiciary hierarchy Significance in the operation of the binding system of judicial precedent is the hierarchical structure of the court system, for whether a court is What is judicial precedent essay to follow a previous decision depends to a very large extend on which court gave the previous decision.

There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations. Another disadvantage is that there is no opportunity for the judge to research or consult experts on the likely outcomes or effects of their decisions.

The civil court hierarchy is different; the Supreme Court is still the superior court, followed by the Court of Appeal Civil Division. They can only fill in the gaps in the legal system and so we can say that precedent means a case decided previously.

Judicial Precedent (Case Law) Essay Sample

The justification of the binding rule of judicial precedent is based on the several reasons these are that, precedent is based on practical experience. Some critics argue that, statute law is more important than precedent, they say that, judicial precedents are published in law reports which are in such a large number that it becomes practically difficult to find out a particular case from such a voluminous legal literature and so it is very time consuming, they also contend that, at one time, different courts express conflicting opinions on the same point which renders the validity of precedent doubtful and uncertain and there is always a possibility of erroneous judgment in such a case.

Differentiate between the terms res judicata, ratio decidendi and obiter dicta. It is clear from the wordings of Article that the law declared by the Supreme Court is binding on all courts in India.

Binding and persuasive precedent Judicial precedents have played and continue to play an important role in the administration of Justice under the English legal system. In England the importance of precedent is much more than in any continental country, that is why it is often said that judicial precedent is an unique feature of common law countries because the great body of the common law or unwritten law is almost entirely the product of decided cases and common law of England has been created by the decision of English judges and precedent is not merely evidence of the law but a source of it and the courts are bound to follow the law that is so established.

In order to find this out a person may have to search through many volumes of law reports, the complete official law reports are estimated to run to almost half a million pages.

Judicial Precedent (Case Law) Essay Sample

Get Full Essay Get access to this section to get all help you need with your essay and educational issues. It is also a continuous, growing source of law.

Ratio decidendi and obiter dicta For a judicial decision to be binding on subsequent courts, the decision must be ratio decidendi. Many matters would have to be taken into consideration before it can said with certainty what the true reason may have been, such as the circumstances and the facts in the case, the arguments of counsel on both sides and the state of the law at the time when the decision was given.

Rather than logic, it is based on convenience in the sense that it is provided in settled law and thus saved the labour of judges. An example of this is found in the case of R v Hasanthis case was about the availability of the defence of duress by threats, to a criminal offence.

This provided sufficient differences between the cases that the judge in Merritt did not have to follow the judgement made in Balfour. The judges are not at liberty to substitute their own views where there is a settled principle of law. A disadvantage of avoiding precedent is that the law changes as a result, creating laws retrospectively.

Despite the doctrine of judicial precedent being a major factor in the English legal system, there are a number of ways by which a judge may avoid following a precedent.

Judicial Precedent Essay - Part 2

These are usually cited where there is a shortage or total lack of English authority on a point. It is based on real facts, unlike legislation. Advantages and disadvantages of Precedent Advantages i. However, the later decisions, especially of the higher courts, can have a number of effects upon precedents.

Essay on Judicial Precedent (1760 Words)

In Secretary of State for Trade and Industry v Desai The Times 5 December, Scott LJ said that to come within the category of per incuriam it must be shown not only that the decision involved some manifest slip or error but also that to leave the decision standing would be likely, inter alia, to produce serious inconvenience in the administration of justice or significant injustice to citizens.

Even experience lawyer may overlook some important rule in any given case. According to Salmond, the doctrine of precedent has two meanings, namely 1 in a loose sense precedent includes merely reported case-law which may be cited and follows by the court, 2 in its strict sense, precedent means that case-law which not only has a great binding authority.

In this case the Court of Appeal refused to allow the homosexual partner of a deceased tenant to take over the tenancy due to regulations laid out in the Rent Act In particular the court may be able to distinguish the case before it from the previous case on the facts.

Judicial precedent also called case law. 'It is the system adopted by judges where the judges follow previous decisions.'1It simply means that the previous decision made by judges in similar cases are binding upon future cases depending on the hierarchy of the court.

Judicial Precedent - 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.

Judicial Precedent Definition: Judicial precedent is a decision established in a prior legal case and can be used as a reason by court when deciding subsequent cases with similar issues or facts. Introduction: A fundamental principle of judicial precedent is that a hierarchy of courts is needed if it is to operate.

Judicial Precedent in the English Legal System

Here is your essay on Judicial Precedent: Judicial Precedent is another important source of law, it is an independent source of law, where there are no legislations on the particular point in statute Books, and Judicial Precedent works great. Judicial precedent has been accepted as one of the.

A Judicial Precedent Essay - A Judicial Precedent The doctrine of binding precedent or stare decisis, refers to the fact that, the decision of a higher court will be binding on a court lower than its hierachy. The doctrine of judicial precedent is based on the principle of stare decisis which means ‘to stand by what has been decided’.

It is a common law principle whereby judges are bound to follow previous decisions in cases where the material facts are sufficiently similar and the earlier decision was made in a court above the current one in the court hierarchy.

Judicial Precedent What is judicial precedent essay
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