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