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

Judicial Precedent

Extracts from this document...

Introduction

a) Describe the system of judicial precedent Judicial precedent is the system where the judge makes the law, where decisions that are made by the judges in the cases before them form case law. In deciding each case the facts have to be established, in order to determine what truly happened, and secondly, how the law applies to those facts. This application of the law on certain facts is what makes case law. Once a decision has been made on how the law applies to a particular set of facts, similar facts in later cases should be treated in the same way, as to make the system fairer and to provide a small amount of predictability, making it easier for people to abide by the law. The judges listen to the evidence and legal argument of the case, and then prepare a written decision as to which party wins the case, based on what they believe the facts were, and how the law applies to those facts. This decision is known as the judgement, which is split into two parts. The ratio decidendi is Latin for 'reason for deciding' and is the explanation of the legal principles on which the judge has made a decision; it is part of the judgement, known as binding precedent, and is what forms case law. ...read more.

Middle

The High Court can produce precedents for the lower courts, unlike the Crown Court who does not create binding precedent unless a High Court judge is sitting, and then it may be persuasive. The County Court, of the civil courts, and Magistrates Court, of the criminal courts, are the inferior courts. They are not bound by their own previous decisions and neither can make precedent, either binding or persuasive. The system of judicial precedent has some advantages and disadvantages. It provides an element of certainty, meaning litigants can assume like cases will be treated the same. It can respond to real situations, which are more based on theory and logic. The system is flexible, case law can make changes far more quickly that parliament can. However, there are thousands of decided cases that future cases can be based on, detracting from judicial precedents certainty. Judges could make illogical distinctions between cases, by making minute distinctions, again taking away the certainty of the system. There is dependence on chance, as important changes may not be made to the system as no new precedents can be created. Overall the system of Judicial Precedent is a fair one. ...read more.

Conclusion

It provides some degree of certainty upon which individuals can rely upon conduct of their affairs, as well as a basis for orderly development of legal rules. In Jindal Iron and Steel Co. Ltd v Islamic Solidarity Shipping Co. Jordan Inc (2004) the House of Lords was invited to overrule itself using the Practise Direction but it declined to overturn a 1957 precedent, because it had stood for 50 years, had worked and had not produced unfair results and an enormous number of transactions had taken place assuming it was the law. This is a perfect example of judges' creation limits. The first major use of the Direction was in the case of British Railways Board v Herrington (1972). In this case the House of Lords overruled a previous decision that stated that occupiers do not owe a duty of care to child trespassers. The House of Lords is reluctant to use the Practise Direction with regard to criminal cases, as it believes there is a special need for certainty in criminal cases. These means of creation possibilities within the system of judicial precedent provide a firm, legal support to the law, adding some flexibility where it is needed. Rebecca Turner Assignment 2.2 08/04/2009 ...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

    AS LAW -JUDICIAL PRECEDENT

    4 star(s)

    Decisions of court in other countries ...especially where the same idea of common law are used, commonwealth countries e.g. Australia McLoughin v O'Brian (1983) The extract from Peake J in Mirehouse v Kennel 1883 means that our Common Law systems function is applying new precedents and laws for new circumstances

  2. Marked by a teacher

    Judicial Precedent

    3 star(s)

    For example in R v Gotts (1992) the defendant was charged with attempted murder and pleaded duress. Under the obiter dicta of R v Howe, the House of Lords held that this was not a defence and found the defendant guilty.

  1. explain judicial precedent

    The case does not normally contest the validity of the law it just looks at the facts of the argument. If when the decision comes the loosing party does not the result or disputes the fairness of the law it can go to appeal.

  2. Free essay

    heirachy of civil courts

    In civil cases, appeal from magistrates' courts usually lies to a divisional court of the family division of the high court. Superior courts (a) The high court of justice The high court deals with the more serious civil cases, and hears most appeals from the county courts.

  1. unit6 end of unit assignment civil litigation

    ] per day �136.37___ �6899.37 SONIA KHAN I believe that the facts in this Particulars of Claim are true. I am duly authorized by the claimant to sign this statement. Signed........................................................ Position held: Solicitor of the claimant Dated this day of the 27th November 2006.

  2. Juvenile Justice

    However they are still alot of juvenile crimes for example in 1999, law enforcement officers arrested an estimated 2.5 million juveniles. Approximately 104,000 of these arrests were for violent crimes. The most common offense was larceny-theft. Juveniles usually commit these offences as to get money.

  1. AS LAW - Judicial Precedent

    A binding precedent is only created when the facts of the second case are sufficiently similar to the original case and the decisions was made by a court which is senior too, or in some cases the same level as, the court hearing the later case.

  2. Judicial Precedent

    in an act could be subject to several different interpretations, the court could 'choose between those meanings, but [not] beyond that'. An example of this was in R v Allen (1872), which involved the word 'marry' in the Offences Against the Person Act 1861.

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