The english legal system unit1 assignment3 three part question

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(a) The HofL has declared that the system of precedent is an indispensable foundation providing certainty in the law. Explain how the system of precedent operates to pursue the goal of certainty whilst ensuring that certainty does not result in rigidity

This essay seeks to consider the system of precedent being ‘an indispensable foundation providing certainty in law.’ In doing so it will also assess associated advantages and disadvantages with the current system. Finally, discussing whether or not ‘certainty’ has the effect of rigidity in the law.

In essence, the Judicial Precedent doctrine refers to the fact that a decision of a higher court will be binding on an equal or lower court. The House of Lords stands at the summit of this hierarchy and its decisions are binding on all courts. The next court in the hierarchy is the Court of Appeal, and further down are the Divisional Courts, High Courts, Crown Courts, County Courts and Magistrate Courts.

Our system of precedent (case law) means, in its simplest form, that Judges can adapt the law to suit changing circumstances and that a lower Court must follow Judgments issued by higher Courts. Also, binding precedent is based on the view that it is not the function of a judge to make law, but to decide cases in accordance with existing rules. Since Parliament is 'sovereign' it is the function of Parliament to make law.

Historically, the judges merely tried to do justice in each individual case. i.e. decisions varied according to the whims or preferences of the current Chancellor. This system, therefore, lacked certainty and criticism was strong.  From about 1700 onwards the court began to pay greater respect to its previous decisions. The doctrine of judicial precedent did not become firmly established until the 19th century as illustrated in the case of Mirehouse -v- Rennell (1833), where Baron Parke stated “notice must be taken of precedents and the court could not reject them and abandon all analogy to them”.  Thus aimed to tackle the previous associated deficiencies inorder to operate in pursuance of certainty.

The modern doctrine of binding precedent in its present form is due to two factors. Firstly, an efficient system of Law Reporting, previously private reports were published which also contained many which were unreliable. Secondly, the"Court hierarchy” system.  They are structured with inferior (or lower) courts and superior (or higher) courts.  It stands to reason that the superior courts have more standing than the inferior ones. The Judicature Acts 1873-1875 established a clear court hierarchy.  The doctrine of precedent depends for its operation on the fact that all courts stand in a definite relationship to one another. For example The European Courts decisions bind all British courts in matters of Community Law, but not its own future decisions. Also the House of Lords decisions are binding on all English courts. However, since 1966, following a statement by Lord Gardiner L.C., the House need not follow its own previous decisions. Further The Court of Appeal (Civil Division) decisions are binding on all inferior Courts.   In Young -v- Bristol Aeroplane Co (1944) it was held that the court is also bound by its own previous decisions with certain exceptions. However, in the Court of Appeal (Criminal Division) since the liberty of the subject is involved, an earlier decision should not be followed where the law was misapplied or misunderstood as illustrated in R -v- Jenkins.

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Two requirements must be met if a precedent is to be binding: Firstly, it must be a ratio decidendi statement where the judgments contain findings of fact, both direct and inferential. Secondly statements of law must be applied where the judge will state the principles of law applicable to the case.

In an attempt of ensuring certainty does not result in rigidity The House of Lords is uniquely placed to develop English domestic law through its judicial decisions. Since a rigid adherence to precedent may lead to injustice where a court may have to apply an out-dated decision of a superior court ...

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Summary:This is a general explanation of rules of precedent and statutory interpretation. The whole essay could have benefited from greater use of case illustration. Rating:***