Case Law and the Doctrine of Precedent Essay

In this essay I ordain be discussing several points of engage that will help me practise the given question. My first point is on the Hierarchy of the appeals. In this point I will explain the antithetic levels at that place are in the English schema. My second point is watch Decisis and what it is. This point is make up of several questions that I will answer why have harbouring designer? What has to be followed? That is Obiter Dicta and Ratio Decidendi? What is weighty designer and who applys it and how it is apply? When is a mark bound? Can the view Decisis be avoided? And lastly How has survey Decisis handicapped the development of the English virtue?The hierarchy of the courtsThe English agreement is made up of a hierarchy of courts. Hierarchal means that the courts which are high in the system meet appeals from the ones to a lower place them. The finishs made in the high(prenominal) courts are of great importance. The toilet courts are known as foot sol diers and are at the female genital organ of the system. Some courts in this rank are the Magistrates court, the Youth court, the Coroners court and the County court.These courts consider gaucheries daily and are which the average person will find themselves in for debt, injuries, car accidents and low level criminal offences. They are of a best amount of importance because they consume decisions for justice daily. These courts however have micro impact on the development of jurisprudence except as a source for cases which may then be heard or appealed to higher courts. Since these courts are the lowest they do non bind both different court except themselves.There are two courts on the higher level. The spunky court which deals with cases pertaining to polite payoff of unlimited value and the poll court which deals with serious criminal offences. The High court has four sections the chancery division which deals with matters pertaining to equity, the Family division wh ich deals with family matters, the Queens Bench division which deals with civil matters and the Divisional court who hears the appeals from civil prerogatives of the lower courts. The High court is not bound by its old decisions but it can make precedents for the courts below it. Like the High court, the Crown court is bound by all(a) higher courts. It doesnt make covering precedents but their judgments form coaxing precedents when a High court render places in the Crown court. It overly is not bound by its past decisions.The address of Appeal is the close step higher. This court is the most important of the hierarchy dismantle though it is not at the top of the system. This court is important because it hears appeals from lower courts in both the criminal and civil matters. There are three judge who sit to hear an appeal. Two of these judges mustiness(prenominal) be manufacturer of Justices of Appeal. The third judge could either be a judge from the High Court or the do gmatic Court. The name given to the head of the Court of Appeal is the Master of the Rolls.The controlling Court is the highest appellate court in the hierarchy. It hears cases on appeal from the Court of Appeal. Sometimes the appeal will flummox straight from the High Court or the Crown Court. This and happens if there is a case which involves the important question of the virtue. The people who sit in the haughty Court are called Justices of the Supreme Court. There are at least three to five Justices who sit to hear appeals. It the case is really important than seven sit to hear the case. There can only be at most twelve Justices in the Supreme Court.The hidden Council is the highest court in the Commonwealth nations and civil appeals. Some of the judges who sit in the clandestine Council are those which make up the Supreme Court. The cloak-and-dagger Council is not a part of the hierarchal system and so its decisions do not bind the English Courts. Even though the decis ion of the Privy Council does not bind English courts, the judges are the equal that make up the Supreme Court of England there is a section of the Supreme Court that is persuasive precedent. Following the case of R v crowd Karimi (2006) the Court of Appeal found out that in certain batch the Privy Council can bind the English courts and overrule previous precedent.Stare DecisisStare Decisis means to stand by things decided. Stare Decisis is one of the main things that makes up the case law system. This makes judges bound to follow the previous decisions of higher courts in similar cases. This simply means that judges must obey previous judicial decisions of higher courts.This question is often asked why have Stare Decisis and why not let judges use their own conscience and wisdom to decide a case? As with everything there are advantages and disadvantages of creating something. The advantages of having Stare Decisis are that it promotes certainty, consistency and predictability. Professor Geldhart give tongue to that certainty is promoted by consistency of judicial making. Similar cases should have the very(prenominal) outcome.Certainty promotes predictability and this reduces the possibility for trial because everyone will know how certain cases will be decided.it also limits the potential for the declaratory surmisal to take effect. The theory is put into place to reduce judges who are not take not to make law. The role of the judges is to apply and interpret. Law is made in Parliament and it represents the will of the people who elect the members of parliament. It also promotes justice. This oddball of justice is Aristotlean justice. This means that fairness is given equally of legal dominions. The system is the comparable for everyone and so similar cases should be dealt with the similar way.Disadvantages are that it makes the law rigid and inflexible. The law is not able to develop and is stuck. Precedent binds even if it is old and noncurren t. The discretion of the judge is that he must follow and last by the decisions made by the judges before him no matter how old or outdated it may be. This also makes the law stuck and not develops to meet the modern sidereal day changes. The amount of case law precedent adds up to uncertainty. Case law and its precedents are contained in thousands of reports starting from the in-between ages. It is difficult for lawyers and courts to go through and through them and find similar cases. It is not indulgent for judges to find the binding part (Ratio Decidendi) of any case.Ratio Decidendi is the symmetrynalness for coming to the decision. This is the principle in which the court uses to make a decision. The ratio is the rule expressed by the judge to the extent that is necessary for the judge to come to his decision. Obiter Dicta are the things said by the way and other things which so not make up part of the decision making.When is a evaluate Bound?As I stated earlier, a court must follow the decision of a higher court and its earlier decision. The system works in a way that makes binding precedent fail in a way to tie the hands of the judge. When the ratio binds any part of a court depends on the original decision that was made. The Supreme Court binds the Court of Appeal, which binds the High Court which binds the Magistrates, Crown and County court. Courts also bind themselves because of its earlier decisions. The only exception is the Supreme Court who makes its own decisions and is not bound by any other court because it is the most senior. onwards 1966- Judicial PrecedentHoL announced that they would no longer consider themselves short bound to follow their previous decisions. Binding precedent remains the stem of the English System of case law. The earlier decisions were based on conditions which no longer triumph and in modern conditions the law ought to be different. mendtle are bound by similar cases. Judges in the last mentioned case are b ound to apply the same ratio used in early court where the two cases were based on the same issue. If the matter of a case is similar but has facts that similar to al later case, they differ and the issues are not all similar and the court is then not bound to apply the earlier precedent. This is called distinguishing.Can the tenet of Stare Decisis be avoided?Reversing occurs when a court higher up in the hierarchy downturns the decision of a lower court in the same case. A decision made in a certain case by the Court of Appeal will bind all afterlife lower courts and it would bind itself. This can be avoided id the appeal went straight to the Supreme Court who would reach a different decision. The court of Appeals decision would have been short-lived precedent and the Supreme Court decision will take place of the previous one.Overruling is replacing one precedent with another which helps develop the law. Reversing is where a higher court substitutes a principle made by a lower co urt in the same case. Overruling involves a higher case substituting a principle set down by a lower court in a different and earlier case.My conclusion is thus the principle of Stare Decisis has handicapped the development of the English Law because it makes the law rigid and inflexible. The law is not able to develop and is stuck. Precedent binds even if it is old and outdated. The discretion of the judge is that he must follow and abide by the decisions made by the judges before him no matter how old or outdated it may be. This also makes the law stuck and not develops to meet the modern day changes. The amount of case law precedent adds up to uncertainty. Case law and its precedents are contained in thousands of reports starting from the middle ages. It is difficult for lawyers and courts to go through them and find similar cases. It is not easy for judges to find the binding part (Ratio Decidendi) of any case.View as multi-pages