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As law assignment 2.2

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Assignment 2.2 Judicial Precedent The doctrine of judicial precedent, also known as Case Law, is a system often used within case law, is of relatively recent origin. It means that a judge deciding a case must follow earlier decisions of a higher court, or equal court in order to reach a decision (decisions in case law are known as judgements). Judicial precedent really started to gain full flow in the 19th century In 1833, as previous cases were already frequently referred to, Baron Parke (an important judge at the time) said that precedents must be regarded and referred to in all future cases, and that the courts could now not reject them. The case that Parke made his decision regarding precedent on was Mirehouse v Rennell 1833. That rule is still in effect today. The way that the system of judicial precedent works regarding the hierarchy of the courts is rather complex. Each court, when precedent is required, must use previous decisions of a superior or equal court. ...read more.


Obiter Dicta encompasses all parts of judgement not taken in with the ration decidendi. Judicial Precedent is well reputed as a good system, for many reasons are: * Certainty - Judges will not make their own random decisions, and litigants can plan their affairs, as they know that cases will be treated alike. * Detailed practical rules - Many statutes are often based on theory and logic, whereas judicial precedent is always based on real situations. * Free Market in Legal Ideas - A good example of this is the statement of the right wing philosopher Hayek, who believes that legislation should be almost non-existent, and that case law should become predominant. Therefore, Hayeks ideas see that law can develop in response to demand. * Flexibility - The law has to be flexible, and able to change quickly just as society does. With the system of judicial precedent, changes can be made in the law far quicker than if parliament were to make those changes. Of course, the system of judicial precedent is not without it's faults. ...read more.


The 1966 practice direction plays a major role in this aspect of law. The 1966 practice direction was a statement by the judicial section of the House of Lords. They said that they would modify their present practice, and that they would no longer be bound by it's own decisions. In my opinion, the entire English legal system should be able to use the 1966 practice direction, to make the system more simple. Another factor that plays a major role in this aspect of law is William Blackstone's declaratory theory. This theory states that judges do not make law, but merely, by the rules of precedent, discover and declare the law that has always been. Blackstone's declaratory theory. This theory is probably true, and I agree with it. Blackstone was a clever man, and this theory still makes sense today. Judges can be creative through case law as theyhave to act upon their best judgement to create new law. Alex Lyons 12SFBU 1 23/01/08 ...read more.

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