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

    By distinguishing the previous case from the current case based on the significant facts a Judge can avoid applying the precedent. (Elliot & Quinn, (2009) English Legal System, 10th Edition Pearson and Longman pg: 20) Judges (of leading Courts) can overrule decisions made in lower Courts if it appears that the lower Court did not correctly apply the law.

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

    Court of Human Rights normally put their decisions on the Web within hours of their being handed down, as do a number of foreign courts. The Court of Appeal and other English courts are less comprehensively reported at the present time, but a number of official and unofficial sites cover major cases from these too.

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

    Hudge Aglionby rejected the argument that there was not even a void marriage on the basis that the ceremony ' bore all the hallmarks of an ordinary Christian marriage'. However one must ask what the judge would have decided if the wedding did not bear the hall marks of an

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

    will be reviewed in the original house the bill started, the next stage is the third reading is the last vote and is more a matter of form, it is improbable the bill will fail at this late stage, the bill is passed across to the next house to repeat

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

    It was difficult before Pepper v. Hart, and still is, to an extent to determine Parliament's intent, but see the long title, etc. If judges use a purposive approach, they are engaging in an essentially legislative function, which is a breach of the doctrine of the separation of powers.

  1. Discuss and critically consider the advantages and disadvantages of criminal trials from the views ...

    where a white male, being accused of indecent assault against a young girl was in fact, not the perpetrator. The victim did not give evidence her attacked was 'coloured' and the courts denied the victims mother to give this evidence.

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

    The European Court of Justice can overrule its own past decisions if necessary. The most senior court for national laws in England and Wales is the House of Lords. Like the European Court of Justice it is not bound by its past decisions although it will normally follow them.

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