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Judicial Precedent

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Introduction

2. What is judicial precedent? Precedent is defined as preceding instance or cases that may serve as an example for or justification in subsequent cases It means judges are to follow the rule of law of previous decided cases until overruled or modified by a higher court. Similar cases basically are to be treated alike based on the stare decisis. This is a way in which judges could create certainty and fairness within the legal system. 3. What is the meaning of stare decisis? Stare decisis is an abbreviation of the Latin phrase 'stare decisis et non quie ta movere' which means to stand by what has been decided and not to unsettle the established. This is the basis of the English legal system of precedent for example where the decision of a higher court acts as binding authority on a lower court within the same jurisdiction. 4. What is the ratio decidendi of a judicial decision? Ratio decidendi is the explanation of the reasons for a decision made by a judge in a case before court. 5. What is an obiter dictum? During judgement judges will explain reasons for their decision and sometimes state obiter dictum Obiter dictum means 'other things said by the way', that is, the judge makes some other comment of the law. ...read more.

Middle

Secondly to enable the House to pay more attention to decisions of superior courts in the Commonwealth. The change would also bring the House into line with the practice of superior courts in many other countries such as the U.S.A The House of Lords has proved to be reluctant in using the Practice Statement, despite having the opportunity to use it in cases where there could be injustice or the previous decision is wrong. An example of such a case was that of Jones v Secretary of State where all of the judges thought that following the case of Re Dowling would cause injustice. The majority of them thought that the case was wrongly decided initially, despite this they did not change the precedent preferring to retain the idea of certainty. The first use of the first use of the Practice Statement was in the case of Conway v Rimmer (1968), this was only a technical case and did not develop the law much. The first major use was in a civil case in 1972 of Herrington v British Railways Board, which involved the law on the duty of care to child trespassers. The previous case of Addie v Dumbreck (1929) had found that the occupant of the land would only owe a duty of care to a child trespasser if injuries were caused by purpose or through recklessness. ...read more.

Conclusion

The old law held that when a woman is married she has no right to refuse sex with her husband. The judges decided not to follow this law and change it to suit the ideas of the twentieth century, where a husband and wife were now seen as equal partners in marriage. As a result the husband was found guilty. Another example is that of Airedale NHS Trust v Bland (1993), where judges had to decide whether it was lawful to end the life support of a football supporter left in a coma after the Hillsborough stadium disaster. Even though it was known that doing so would cause his death soon after. The judges felt that this sort of case should be decided by parliament but nevertheless they had to make a decision, they decided that it was lawful in the circumstances as it was in the patient's best interests. It is disputed as to whether judges should make law or not as their role is to apply the law. Judicial law making is seen as undemocratic as judges are not elected. Nevertheless Judges have to make the law, for instance in case where there is no precedent to follow the judge has to make a decision. By overruling old case judges in effect create new law and this is necessary for the development of law. Parliament is sometimes slow to update old law, but judges can do so much faster and this can be seen in the case of R v R (1991) ...read more.

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