An Task On Doctrine Of Precedent Regulation Essay

The doctrine of precedent plays an essential role in the British legal system because common legislations can be an important source of regulation in the British legal system as opposed to the European legal system, which is based on legal models and ideas. The English system of precedent is dependant on the Latin maxim: "Stare Decisis et Non Queita Movere", the stand by position what has been decided, nor unsettle the set up. The idea is that by following precedents, which will be the prior decisions of judges, fairness and certainty will be provided. Precedents can only just operate if the legal known reasons for earlier decisions are known. Therefore, at the end of a circumstance (civil) there will be a judgement in which the judge gives not only the decision but also the legal reasoning which is situated behind it.

Doctrine of Precedent

The doctrine of precedent in the context of the English legal system means the judges in the courts make the rules for a specific case prior to the courts given the facts of the case in confirmed area of regulation. If in the foreseeable future, similar cases arises they use the same guidelines or reasons they use to make legal decisions. Within the English legal system the precedents of the bigger courts are binding on lower courts and the judge composition is hierarchical.

Stare Decisis

It is a simple theory that like cases should be cured alike. The latin maxim stare Decisis is the foundation of the doctrine of precedent. Precedent as managed in British legal system, requires that in certain circumstances a decision on the legal point.

Ratio Decidendi

The Latin key phrase "ratio decidendi, " often translated as "the reason behind your choice, " can be used in the legal community to refer to the explanation behind a courtroom decision. Every case has a ratio decidendi, a basis which the judge used for ruling in the way that it have. It is sometimes evident and at other times a courtroom might need to make clear it, as when a court is placing a precedent and so cannot rely on previously proven rationales which shaped the foundation for other legal decisions.

Obiter Dicta:

The word is derived from the Latin orbiter dictum, "a statement made in passing. " When a judge makes a dictum, it is in a way an editorial comment. It generally does not have immediate bearing on the situation and may well not be backed up with legal precedent, it is merely a affirmation about some aspect of a case. Because the declaration is not lawfully binding, folks have the option of disregarding it, although dicta have been utilized in courts and legal views on the basis that because these were entered in to the record, they had relevance.

Fig: Hierarchy of the Courts

Operations of Doctrine of Precedent

These basic rules are crucial if the doctrine of precedent is to use whatsoever. The other thing, which is essential, is the fact that lower courts know all the legal reasoning behind decisions of the higher courts. They are able to only do this if those reasons are properly reported. All decisions from the High Court upwards are properly reported through the system of Rules Reporting.

Distinguishing; over ruling, reversing

Distinguishing

If a judge chooses that the materials facts of the circumstance before him are sufficiently different from the materials facts of the circumstance made up of the precedent then he's not bound by the precedent e. g. Balfour v Balfour (1919) and Merritt v Merritt (1990) Both cases engaged a partner making a lay claim against her partner for breach of contract. In Balfour it was chose that the case could not succeed because there was no intention to produce legal relations, there was merely a local arrangement between husband and wife so there was no deal. In Merritt the judge distinguished the situation from Balfour because even though parties were couple, the agreement was made gatherings were couple, the arrangement was made once they had separated. In addition, it was on paper, so it was a legitimately enforceable agreement. Sometimes ratios are vast - applicable to numerous further instances. Some ratios are narrow - maybe not applicable to any.

Wide ratios have less material facts to consider than slim ratios. Wide ratios are more difficult to distinguish. Donoghue v Stephenson large ratio and a rapid, extensive succeeding development of regulations of neglectfulness.

Over-ruling

This is where a judge in a later circumstance expresses that the legal guideline decided in an earlier case has been highly decided. This might normally happen when a judge higher in the hierarchy over-rules a conclusion made by a lower judge in a past case. However both ECJ and the House Of Lords can over-rule their own decisions manufactured in previous instances.

Reversing

This is where a court higher in the hierarchy over turns your choice of less judge in the same case. E. g. the Judge of Appeal reverses a choice of the High Court docket.

Following

Where a higher court will abide by the decision of the later courtroom.

Advantages of Doctrine of Precedent

Certainty

The doctrine of precedent provides certainty as a result of judges using the precedent founded in previous instances be employed if the case before the court is comparable and the litigants can anticipate exactly what will be the results of the case and their privileges and liabilities. However any legal system must have some amount of overall flexibility and balance the need for certainty against versatility. In the British legal System the home of Lords must have this responsibility to balance the necessity for overall flexibility against certainty. In practice it is an extremely trial.

Possibility for Growth

The system provides new rules to be founded and old guidelines to be designed to new circumstances if those rules are valuable to be extended to new circumstances. It is because the system gives discretion to judges to make new rules or amend existing rules to fit new circumstances by the process of distinguishing.

Practicality

The rules of English case law aren't produced from particular theory of legislation or model and don't deal with hypothetical situations. It is derived from genuine cases before the courts. In addition, English case Rules has detailed guidelines in comparison to other Western european legal systems and no code of legislations will provide the riches of information the English case regulation provides.

Disadvantages of Doctrine of Precedent

Rigidity

Once a rule is established and it's binding even if the decision is regarded as wrong, an altercation, apart from by distinguishing is less than reasonable. However, this downside is revised by the actual fact that the home of Lords need to follow its own past precedent. However in practice due to costly litigation and the reluctance of the home of Lords to over rule its precedent only in exceptional situations the doctrine of precedent is rigid somewhat.

Conflict with Constitution and Slowness of Growth

As the judges have discretion to generate new rules and in practice they have substantial power to do so this electric power of discretion of judges may maintain turmoil with the parting of capabilities of enacting legislation by parliament and the court is to interpret the law and not to make laws. Aswell, it can be in conflict with Euro Community law and may be in conflict with Human Rights Function 1988. As the litigation is a slow-moving process and it is expensive the situation law cannot increase faster to meet modern needs and legislation is essential to deal with these situations.

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