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To what extent do the doctrines of precedent curb judicial creativity?

Extracts from this essay...

Introduction

To what extent do the doctrines of precedent Curb judicial creativity? I have been asked to discuss the extent, if any; whether the doctrine of president curbs judicial creativity. Do judges make law; or does it stem from judicial precedent? Judicial precedent is the process whereby... What is the doctrine of judicial precedent? Must judges in all circumstances follow legal precedent...? The doctrine of judicial precedent is that, to make common law fair, judges in their rulings should follow past decisions made by other judges, in similar cases. This is based on the maxim 'stare decisis et non quieta movere' which means 'stand by what has been decided and do not unsettle the established'. This creates fairness and provides certainty in the law. Judicial precedent is known as 'the tool of common law'. It is one of common law's main sources. Although judicial precedent is known as 'judge made law', judges follow judicial precedent to avoid making new law. If judges frequently made law instead of enforcing it, we would not have a democracy in Britain. Judges want to protect democracy and them making law could lead to a dictatorship. 'Ratio decidendi' can be questioned on when... Ratio decidendi is a Latin phrase meaning "the reason for the decision." It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment.

Middle

An example of 'stare decisis' is in the following case: Donoghue v Stevenson (1932) The decomposing snail in the ginger beer case. The HoL held that a manufacture owed duty of care to the consumer that products are safe. "Products" have since been held by later courts to include not only foods and drink but also: underpants; motor cars, hair dye, lifts; and chemicals. An example of 'Rator Decendi' is in the following case: R V Dudley & Stevenson's 1884 The two shipwrecked defendants killed and ate the cabin boy. They were convicted of murder. The court gave three reasons for refusing a defence of necessity: * if necessity is not available on a charge of theft of food because of starvation, it cannot be available to a charge of murder * the Christian aspect of giving up one's own life to save another's rather than taking another's life to save one's own * impossibility of choosing between the value of one person's life and another's. An example of 'Orbiter' is in the following case: R V Howe (1987) The HoL commented that a defence should not be available on a charge of attempted murder. Although this statement was 'orbiter', it was following by the CA (and then the HoL) in R v Gotts (1992) when a son attempted to kill his mother under duress from his father.

Conclusion

An example of how they control the operation of case law with reference to Parliament, is the 1966 Practice Direction announcing that the House of Lords would no longer be bound by its prior decisions, which henceforth made case law more flexible and thereby gave more power to judges, this decision was made on the court's own authority, without needed permission from Parliament. A case where the House of Lords explained its approach to judicial law-making was C (A Minor) v DPP (1995), which questions children's liability for crime. The law defence 'doli incapax' provided the defendant was aged between ten and fourteen could be liable for a crime committed only if the prosecution could prove that the child in question knew that the crime he/she did was against the law. Do Judges make law...? Too an extent I believe that judges make law, in which they can influence the decision made. They can also intercept the precedent where said precedent isn't spelt out for them, thus judges nevertheless have to make the decision for the case. Also judges have been left to define their own role, within the legal system, and the role of the courts generally in the political system. Thus they can define their own role as they please, without anyone to correct them on said role. Judges are also inhibited by the fact they have to follow precedent, unfortunately there may be conflicting precedents whereby the implications may be unclear, and so they have to make their own decisions on the ruling of the case.

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