• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

AS LAw The doctrain of precedent

Extracts from this document...


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.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Sources of Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Sources of Law essays

  1. Marked by a teacher


    4 star(s)

    Ltd 1976. This showed there was more willingness to use the power, even in the criminal cases, compensation normally was awarded in sterling but could now be awarded in other currencies. The case of Pepper v Hart 1993 allowed the use of Hansard in interpreting statutes.

  2. Marked by a teacher

    Critically discuss different possible meanings of justice and explore the relationship between law and ...

    3 star(s)

    and take the needs of the society into consideration, without being selfish and looking at only their needs. However, this could be a limitation as some of society may feel that they were the least advantaged of the group. This would then lead to a disagreement of a set of

  1. Marked by a teacher

    Judicial Precedent

    3 star(s)

    Law reports may also be found in the New Law Journal and the Law Society Gazette. Law reports are now available online as well e.g. the Court Service Website. Most law reports follow a similar structure. Information contained will usually include the name of the cases, the court in which the case was heard, the name(s)

  2. Free essay

    heirachy of civil courts

    ensures the observance and recognition of community rules with regard to legal interpretation and application. It is concerned with disputes between member countries, individuals and the EU institutions on matters relating to the treaties, and its rulings are binding. The court is the final arbiter in all matters of law that lie within the scope of the treaties.

  1. Judicial Precedent

    Lord Denning felt that the duty of judges was to 'find out the intention of Parliament and carry it out...[not] opening it up to destructive analysis.' [Magor and St Mellons v Newport Corporation (1950)]. approach is not popular with English judges, who largely feel that judges should not be allowed to decide what Parliament intended.

  2. Judicial Precedent

    a previous decision is made in ignorance of relevant law, also known as per incuriam, there are two conflicting Court of Appeal decisions, and can therefore follow whichever they prefer, or there is a later conflicting House of Lords decision, whereby that decision has to be followed.

  1. AS LAW - Judicial Precedent

    House Of Lords Divisional Itself, High Court and all European Court Other lower courts. House Of Lords Court Of Appeal High Court County Court EC Magistrates' Court H of L Court of Appeal Divisional Courts Crown Court Possibly Magistrates Court All other Courts Above it.

  2. The Nature of Law in Society

    Legal positivism is a view of law as it is set rather than it ought to be. It implies that legal rules are valid not because they are rooted in moral or natural law, but because they are enacted legitimate authority and are accepted by the society as such.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work