Describe the operation of Judicial Precedent.B. Identify and explain the advantages and disadvantages of precedent as a system of law making
In this essay I will be looking at the questions below which are:
- Describe the operation of Judicial Precedent.
- 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. One main feature of the European Court of Justice is that it will overrule its own decisions if it feels necessary a decision made by the European Court of Justice is binding over all courts in England and Wales. The next court in the hierarchy is The House of Lords which is the most senior court in England and Wales. The House of Lords is not bound by its own decisions, but it will generally follow them. All courts in England and Wales are bound by the House of Lords decision. Following the House of Lords is the Court of Appeal, of which there are two divisions: criminal and civil. The two divisions must follow the decisions made by the House of Lords and the European Court of Justice; they must also follow their own decisions although there are limited exceptions to this rule. 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.
