Courts should not determine cases on their merit alone but instead determine an outcome based on precedence from prior cases. Merit is when a case is individual, where only facts included in the case are considered. Precedence, however, means a previous decision that serves as a rule or pattern in future cases. Determining a case based on precedence allows for justice, principles of the rule of law to be enforced and the features found within the rule of law pyramid to be represented along with the process of how laws are made.
A case that follows precedence forms the base of justice. Justice is fairness and equality, where all are equal before the law. Precedence allows for all to have access to justice because that way a committed crime
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Consistency is when the law is applied the same way, achieved through following precedence as each case takes into to account the previous outcomes of similar cases every time. Making sure a murder is dealt with like a murder. Predictability is the certainty of laws and punishments and can be achieved through precedence when cases aren’t vulnerable to a judge, court or jury but instead patterns and rules formed and followed over time. Rationality is when laws are able to be followed so, by using precedence’s like conventions more people will accept them as people are treated equally for the same case. Whilst merit may appear to offer another principle known as impartially, it can be that merit isn’t impartial because the court has to judge that case because it has to structure or prior patterns to base it off. Along with the principles of the rule of law, the rule of law pyramid and how laws are made can also be represented through …show more content…
The first step is to fill in gaps in existing legislation, this legislation includes precedence as if there is no pattern, rule or law an outcome from a case can be taken as an example and used in the future creating both a precedence and a law, completing the second step. The third step is to interpret legislation and this can be used to determine a case but how can that occur if a case it to be only dealt with the facts provided in that case. It can be argued that precedence does not form new laws, instead merit does. However, if the outcome of a case determined by merit was to form a new rule or law in another it becomes
d by agreement in the court of appeals. By applying principles to the conflicting laws, the judge is able to make the greatest social advancements by both punishing for actions causing harm and also giving hint that his honest intentions did not go unnoticed and such intentions should be upheld in society. Looking at the case R.V.Machekequonabe, it is a prime example of conflicting rules. It is always difficult to decide which rule should be followed and which should be rejected, especially in cases where cultural upbringing plays such a major role.
The first model to the judicial decision making is the attitudinal model. This model of judicial decision making speculates that a judge’s behavior can be predicted mostly by his or her policy attitudes. It perceives judges of the court as motivated by policy goals and unconstrained by the law. Therefore, they decide cases according to moral preference rather than by the meaning or intention of legal texts. One review of the attitudinal model is the fact it relied heavily on unreliable evidence. Also, the attitudinal model of decision making does not always interpret from explaining justice’s decisions at the Supreme Court. Most legal practitioners such as lawyers and judges are likely to think that a very simple attitudinal model is missing
Legislation and the Common law are not separate and independent sources of law. They exist in a symbiotic relationship. Symbiotic relationship refers to the two different sources of legal norms that provide the sum of rules establish system as a whole. (Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31])
Nowadays, the Australian legal system has three powers, which are legislative, executive and judicial. Legislative power is in charge of making the laws; subsequently those laws will be passed to the executive power to administer the laws it...
What is a model? “A model is a simplified representation of reality it does not constitute reality itself. Models purposely ignore certain aspects of reality and focus on selected and related sets of crucial factors” (Segal and Spaeth 2002). In this paper, I will be discussing the three models and which model explains how justices behave the best: the legal model, the attitudinal model, and the rational model. The legal model justices vote on their preference but when given the opportunity they would vote to overturn the precedent because it does not fit their personal opinions. The attitudinal model justices are provided with the best prediction on a given case to determine how to vote. The rational model is the last model that feeds off the other models. The justices for this model vote on their preferences and not on sides. I will describe how each model links into each other.
The principle of justice is to treat others equitably and fairly. Often confused with entitlement, it is providing quality and comparable care to individuals equally. One example of the principle of justice in society is the recent Affordable Care Act attempt to meet the healthcare needs of the
Moral rightness and fairness are two alternate ways of saying justice. Justice is defined in a legal dictionary on law.com as “a scheme or system of law in which every person receives his/ her/its due from the system, including all rights, both natural and legal.” There are many different opinions on the law and justice systems in America, many of which are not particularly positive. Law.com also states, one problem can be found in the attorneys, judges, and legislators, as they tend to get caught up more in the procedure than actually achieving justice for the people. While others say that our law system is not interested in finding out the truth, but more criticisms can also be seen in Herman Melville’s story, “Bartleby, the Scrivener.” Melville
Justice is described as “a moral concept that is difficult to define, but in essence it means to treat people in ways consistent with
Case law/Common law – body of law developed over time by higher courts. Laws are c...
Fairness Doctrine - Wikipedia, the free encyclopedia. (2011, January 15). Wikipedia, the free encyclopedia. Retrieved February 4, 2011, from http://en.wikipedia.org/wiki/Fairness_Doctrine
Something more common is stare decisis, which is a type of methodology, and common law that they use along with interpreting the constitution. It is used so judges have some type of consistency and are bound to their past decisions. Stare decisis there are four primary reasons to follow it, it treats cases the the same, makes the law more predictable, strengthens judicial decision making and furthers stability (Oldfather, 2014). This is important in regards to constitutional interpretation because it is basically saying that judge is also bound to past constitutional interpretation. Some of the precedents produced by stare decisis are bad, but that’s because the system is not perfect. The implementation of precedence is also complicated because you have to find cases that are sufficiently alike and most cases are not identical (Oldfather, 2014). Another significant factor in stare decisis, is that the courts usually feel more comfortable in overruling constitutional precedents than amending the constitution, which is much more difficult. Stare decisis is commonly used in adjudication, probably the most prominent articulation of it was in Planned Parenthood v. Casey, where they analyzed if they wanted to overturn Roe v. Wade, in terms of its workability (Oldfather,
and that there has to be sufficient and accurate reports. of earlier decisions. There are six main elements to the Doctrine of Judicial Precedent which are as follows :- Ratio Decidendi (Ratio): The reason for deciding, this is known as the. legal reason for a Judges decision, the ratio of a case. can sometimes be somewhat difficult to interpret.
The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is a clear way of distinguishing the ratio of a case. A key feature of the unwritten constitution is ‘the separation of powers’.
Since there is a premise on which the judgment will be made, a proper benchmark, the judicial procedure occurs much quicker. For this reason, it is much more efficient in its process in relation to the codified system which does not follow this process of a precedent based system. As the decisions made are premised on antecedents, they have a firmer basis. This is an obvious advantage over the common law as the codified system of law has to rely on the creation of rules and legislation rather using case laws to create future laws.
In the mouth of a British constitutional lawyer, the term the rule of law seems to mean primarily a corpus of basic principles and values, which together lend some stability and coherence to the legal order.