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AS LAw The doctrain of precedent

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Willow Mentos AS LAW A.) Explain how the Doctrine of precedent operates within the English Legal system of case law (20 marks). B.) Discuss the advantages of the system of president. (10 marks) Jan 2004 AQA A.) Explain how the Doctrine of precedent operates within the English Legal system of case law (20 marks). 'Common law' is judge made law. "The primary role of judges is to resolve disputes by applying existing laws."(AQA Law in Focus) The primary roles of judges are to trial defendants and o determine what sentence should be passed using generally existing laws. Parliament and the EU have more of an impact on current law then judges. "Where an Act of Parliament is relevant to a case, a judge must apply that Act."(AQA Law in Focus) However judges also have the power to make new law or change existing law if: * It is necessary to decide what interpretation should be given to the language in which UK or EU legislation is written. * Or where there is no legislation relevant to the case before the court. If there is no relevant legislation the judge must determine how to follow the decisions made by judges in earlier cases that had similar facts to the case. Lord Simonds in the case of Midland Silicones Ltd v Scruttons Ltd (1962) ...read more.


Lower courts have no choice but to follow precedents set by higher courts. Precedents set by higher courts are known as 'binding precedents.' Lower courts can make precedents but a precedent from a lower court can be overruled or reversed by one of the higher courts at a later date. C.) Discuss the advantages of the system of president. (10 marks) I am now going to discuss each stage of the hierarchy of the courts and how they contribute to the doctrine of precedent. The European Court of Justice (ECJ) "The ECJ is a court that derives its authority from the member states of the European Union not just from English law."(AQA Law in Focus) The UK is a member or the EU and so decisions of the ECJ are binding on all UK courts. However some areas of law like criminal law are unaffected by European law. In these areas the House of Lords is supreme. The ECJ however is a lot more flexible about overruling its past decisions than the House of Lords. House of Lords There has been a very controversial debate amongst the judiciary and the legal academics for some years regarding the extent to which the House of Lords should see itself as bound by its own decisions. The House of Lords is the highest court of appeal in the domestic UK system. ...read more.


* Where the earlier Court of Appeal decision was given per incuriam. For many years in the 1960's and 70's the Court of Appeal and Lord Denning sought in various judgments to overthrow restriction Young v Bristol Aeroplane(1944) Ltd creates. The ratio decidendi of a case "is the statement of what law is in relation to the particular facts at hand."(AQA law in Focus) This principle is central to a judgment. Other things said by the judge are known as obiter dicta. Rupert Cross described ration decidendi as 'any rule expressly or impliedly treated by the judge as a necessary step in reaching his decision.' In future cases where the facts are basically similar ratio decidendi that binds a judge. The obiter dictum however does not bind future judges although they are heavily influenced by it. Obiter dicta statements often turn out to be influential in the evolution of the law and should not be regarded as insignificant just because the ratio binds the courts. Judges considerations make them cautious about changing the existing law dramatically. Judges take into account these considerations: 1. The need for certainty in the law If the courts stay treating cases that are similar in the same way, this is helpful to people who need to plan their affairs in light of the current affairs. 2. The Role of Parliament When courts have the opportunity the make laws, they normally hand it over to Parliament on the basis that this is a matter for parliament as a democratically elected body. 3. Policy Arguments ...read more.

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