• 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...


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.


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.


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. 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.

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

    Thus the law of nullity can be criticised for being out dated and favouring Christian type marriages in a modern day multi-cultural and religious society and thus may be it should be abolished and perhaps he replaced with a more updated and modern law of nullity to take into consideration the way society has changed.

  2. Law Making - Judicial Precedent.

    The ratio and the obiter are decided later by fellow judges, Barristers, Solicitors, legal academics, and students of law. Persuasive Judicial Precedent Where no binding precedent exists but a judge needs to reach a decision. E.g. a new piece of legislation being tested for the first time.

  1. “The system of Judicial Precedent permits both flexibility and stability in the law.” Explain ...

    this case it has sometimes been decided that it is inequitable for one party to rely on strict terms of contract if the other party is led to believe they will not. There are different types of precedent within the law.

  2. Explain and Illustrate, the Operation of the Doctrine of Judicial Precedent and Discuss how ...

    Judicial precedent works in many different ways. When a judge is faced with a case on which there appears to be relevant earlier decisions, either by the court (if bound by its self) or a higher one. It can be said that judges either follow the rules of precedent or uses some of the ways below to avoid it.

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

    The established rule of precedent was thrown into doubt by the recent Court of Appeal judgement of R v James and Karimi (2006). The Court of Appeal held that the Privy Council could bind English Courts and effectively overrule an earlier House of Lords judgement in exceptional cases, which conflicts

  2. Where judges do not follow precedent (or where they distinguish binding cases on dubious ...

    precedent binding him. R v Home Secretary ex p Anderson & Taylor (2001) Times 27/2/01, DC Two convicted murderers sought judicial review of the Home Secretary's decision to increase their "tariff" sentences beyond those recommended by the trial judge. Their argument was that under the Human Rights Act 1998 their

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