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Judicial system in australia and more
Us justice system history
Judicial system in australia and more
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Common law is the law made by judges when deciding a certain case before the court. The reasoning the judge applies becomes a precedent, to be followed by other lower courts in future matters of similarity. This is the basis for the doctrine of precedent. A precedent is either a binding precedent, the reason for a decision of a higher court that must be followed by a court of lower status in the same hierarchy; or a persuasive precedent, meaning a reason for a decision of another court that is not binding, and should only be considered for its persuasive value. It is the role of the judge in the common law system to develop and expand the common law where he or she sees fit. It is paramount for judges to base their decisions on cases on judicial precedents. The system of precedent can only operate effectively if the respective precedents are recorded. From as early as the beginning of the sixteenth century, judges produced significant cases in law reports. This process still occurs today, but is now systemised and is controlled by Councils of Legal Education in each jurisdiction (Williams 1998).
In the Australian legal system, a system of common law (case law), the doctrine of precedent is stare decisis (to go by what has been said), meaning that courts are strictly bound to follow past decisions of courts higher in the court hierarchy. Decisions from other hierarchies, for example, courts located in international jurisdictions, may be used as a form of persuasive precedent, but cannot be binding in an Australian case. The court of ultimate authority in Australia is the High Court of Australia, formed by the Commonwealth constitution. The High Court may hear appeals from the Federal Court of Australia or from respective Supreme...
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...sapproval. These four principles ensure that case law is maintained, that a degree of consistency occurs throughout the common law system; and that judges can develop and expand the common law to ensure justice in cases of relevance tried in a society of modern values.
Works Cited
Beazer, M, Humphreys, M & Filippin, L., 2010, Justice and Outcomes, 11th edn, Oxford University Press, Melbourne.
Harris, BV, 2002, ‘Final appellate courts overruling their own “wrong” precedents: the ongoing search for principle’, Quarterly Review, vol. 118, no. 408, pp. 412.
Kirby, M, 2006, ‘Precedent - report on Australia’, International Academy of Comparative Law Conference.
Mason, The Hon Sir A, 1988, ‘The use and abuse of precedent’, Australian Bar Review, vol. 4, no.1, pp. 93.
Williams, CR, 1998, ‘The theory and practice of precedent’, Legal Date, vol. 10, no. 2, pp. 1-4.
“The principle of stare decisis does not demand that we must follow precedents, which shipwreck justice.”
A solution, based in precedent, must be found to illustrate that judges are not consumed by their own opinions and agendas. Setting new precedent in the courtroom is essential to
Precedent- Court decision that stands as an example to be followed in future, similar cases
Holmes Jr, Oiver Wendle. United States. Supreme Court. 274 U.S. 200, at 207. 1927. Print.
The United States v. Thomas J.L. Smiley et al.. (n.d) retrieved 1 February 2012, from Google Books Web Site:
Case law/Common law – body of law developed over time by higher courts. Laws are c...
Hobson, Charles F. The Great Chief Justice, John Marshall And the Rule Of Law. University Press Of Kansas: Wison Garey McWilliams & Lance Banning, 1996.
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
pp. pp. pp Kay, H. H. (2004, Jan). Ruth Bader Ginsburg, Professor of Law.
The Australian Legal System has a rich and detailed history dating from 1066. Law is made in Parliament. We have four sources of law and three courts with different jurisdictions that interpret the law when giving out justice. Important doctrines act as the corner-stones of our legal system. There is a procedure in the courts for making appeals. Separation of powers exists between officials in the courts, the parliament and the Executive. Everyone in Australia is treated equally under the Rule of Law, no matter their office or status. The Law is always changing as society changes, but it can never be perfect and cannot please everyone.
Malleson K, ‘Rethinking the Merit Principle in Judicial Selection’ (2006) 33 Journal of Law and Society 126
Precedent is a legal form or a decision that proceed a case problem of law or rule in future similar cases. Precedent in business law is divided into 2 types. Which is binding and non – binding or persuasive. So what are the differences between 2 of them? First, if the precedent is binding, it means that all of the lower courts must follow whatever the decisions that have been maid by them. For example the final decision od the case is A. But the other lower courts have another suggestion or opinion to say. Yes they can say their opinion but in the end, it wont change the decision that have been maid by the head court.
Cownie, F and Bradney, A. (2002) English Legal System in Context, London, Butterworths, pp. 293-4.
Frank A. Easterbrook, ‘Legal Interpretation and the Power of the Judiciary’ [1984] 7 Harv. J.L. Pub. Pol’y 87 http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/hjlpp7&div=18&id=&page= accessed 14 February 2012. J. A. Holland & Julian Webb, Learning Legal Rules, 6th edn, Oxford 2006, pp. 113-117.
Halprin, Jean-Louis. "The Concept of Law: A Western Transplant?" Theoretical Inquiries in Law 10, no. 2 (2009) PL 12.