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

Describe the operation of Judicial Precedent.B. Identify and explain the advantages and disadvantages of precedent as a system of law making

Extracts from this document...

Introduction

In this essay I will be looking at the questions below which are: A. Describe the operation of Judicial Precedent. B. Identify and explain the advantages and disadvantages of precedent as a system of law making A. Describe the operation of Judicial Precedent. Answer: The operation of the Doctrine of judicial precedent is where the past decisions of the judges create law for future judges to follow. English precedent is based on the Latin, stare decisis, meaning stand by what has been decided. This system relies on the hierarchy of the courts. Every court is bound to follow any decision made by a court higher in the hierarchy and in general appellate courts are bound to follow their own decisions. At the top of the hierarchy is the European Court of Justice, this court only has jurisdiction over some areas of the law such as European law. ...read more.

Middle

Below the Court of Appeal are the divisional courts (Queen's Bench Division, Chancery Division and Family Division). The divisional courts have to follow their own decisions but again there are a few exceptions. Below the divisional courts are the High Court. The High Court has to follow all precedents of the higher courts and it binds the lower courts, it does not have to follow decisions but I generally does so. If the precedent was set by a court or higher status to the court deciding the new case, then the judges in the present case should follow the rule of law established in the earlier case. - But if the precedent is from a lower court in that hierarchy, the judge in the new case may not follow but will certainly consider it. ...read more.

Conclusion

The later court may confuse to follow the previous decisions. b) Fixity - if the previous court has an unjust decision, later court must follow so there's unjustices. c) Unconstitutionality - claims that judges do not make law, they only state the law. d) Arguments over whether the previous case even represents the new one can arise. The judge must decide on what happens in cases like these, as both parties (or even their lawyers) will not find common ground between which previous ruling represents the case as a whole. e) On the matter of previous ruling, there is a variety of cases that could apply. Some cases are even still in the progression stage therefore its rulings cannot be used until after the case is over. The judge has many cases to choose from to refer to and this could take a while - prolonging the court hearing and even resulting in witnesses to forget the event ?? ?? ?? ?? Dominique Howe Judicial Precedent 26th Jan 05 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree English Legal System 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 University Degree English Legal System essays

  1. Does the law of nullity continue to have any valuable role to play in ...

    decree are identical in both cases; it conclusively determines for all purposes and as respects all persons the status of the parties and it empowers the court to award financial provision...and to make orders relating to the custody and maintenance of children of the family.

  2. Describe how the system of the judicial precedent operates - Discuss the advantages and ...

    At the top of the hierarchy is the European Court of Justice. It binds all English courts but does not bind itself with its own past decisions. The House of Lords is the highest court in England. At the end of the nineteenth century, in a case called London Street Tramways Co.

  1. There are many advantages and disadvantages to law making in parliament; however the advantages ...

    all stages and if successful it will receive the royal assent to become an Act of Parliament. An advantage of such scrutiny which the bill must undergo before becoming an Act is that any mistakes are significantly reduced and any errors become more apparent.

  2. Doctrine of Precedent and the Hierarchy of the Courts.

    The House of Lords used to have to follow its past decisions, however in 1966 the Lord Chancellor issued the Practice Statement so it would be able to 'depart from a previous decision when it appears right to do so'.

  1. Explain how the doctrine of precedents operates through the hierarchy of courts within the ...

    (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 19) How judges avoid the strict operation of precedent All Courts were bound by precedents up until the Practice statement of 1966 was issued, which allowed the House of Lords to depart from its precedents when it seems right to do so.

  2. The system of judicial precedent permits both flexibility and flexibility in the law.

    Lord Griffiths understands that 'precedent can actually give judges a good deal of discretion and allows them to decide cases on the grounds of social policy. This raises the question of should they have this freedom?' Personally I believe this to be a very good thing indeed Society can change

  1. Discuss advantages and disadvantages of using the literal rule. Question . ...

    There is a presumption against retrospective legislation. Penal laws should be construed in favour of the person whose liberty is threatened. In construing a consolidating Act, where "the actual words are clear and unambiguous it is not permissible to have recourse to the corresponding provisions in the earlier statute and

  2. 'The scope of the flexibility of the doctrine of binding precedent has two sources; ...

    R [1992] 1 AC 599. In the words of Lord Reid on a request for a departure from a binding precedent (Jones v. The Secretary of State for Social Services [1972] 2 WLR 210) "My understanding of the position when this resolution was adopted was and is that there was

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