This allows the rules system to be consistent: like cases treated alike, and it is just, as people can decide on a course of conduct knowing what the legal consequences will be. Judicial Precedent can only operate if the legal reasons for past decisions are known, therefore, at the end of the case there will be a judgement. This will contain the precise words of the judge and follow a Law Report, which consists of full accounts of cases that are considered important. It will give an account of the facts of the case and a summary of the decision. The principles of law that the judge used to make his decision are the important part of the judgement, and are known as ratio decidendi, or 'the reason for deciding'.
Engel and Munger want to know if the law does what it is supposed to do. An emphasis is placed o... ... middle of paper ... ...that they are trying to incorporate into society. “The judicial process and legal reasoning therefore play a major part in preserving the confidence that the community can reconcile rules, facts of disputes, social conditions and ethics” (Carter, 129). Carter and Burke describe for us how we get the rules that we do and help us to understand that judges do have to use a method and be impartial. On the other hand, Engel and Munger show us through the experiences of Sara Lane and Jill Golding how law incorporates itself into society, how people do and do not choose to use it and why the impartiality of a judge’s decisions are so important to us.
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 also considered overruling when the House of Lords utilises the 1966 Practice Statement to depart from its own previous decisions. Precedents can also be overruled by an Act of Parliament (Law Reform (Year and a Day Rule) Act 1996) This does not however affect the parties of previous cases which followed the overruled precedent unless stated in the Act (War Damage Act 1965), this is only a consequence when a court overrules a judgement and hence, retrospectively the verdict of the case is altered. In some situations, in the High Court for example where a judge disapproves of a fellow judges earlier decision but is not bound by the decision, he or she cannot overrule it, but is able to disapprove of the precedent and formulate a contradictory decision, which weakens the authority of the earlier precedent.
Under the system of judicial precedent, courts are bound by the decisions of other courts which are superior to them. For example, the High Court is bound by a previous decision of the Court of Appeal and the Court of Final Appeal. judicial precedents can be classified into binding precedents and persuasive precedents. Judge must follow the decision of previous case if the precedent is binding and need not to follow if the precedent is persuasive. Binding precedent is made by a higher court and lower court must follow the decision.
Before I discuss the theories, I need to clearly highlight the distinction between so called ‘hard cases’ and ‘easy cases.’ I need to make this distinction clear as both theories mention the difference between them. In order to distinguish between the two above mentioned concepts, it is best to identify ourselves with the traditional view of law. The traditional view of law is that ‘there are right answers to legal questions, which can be found within the law.’ This view is that for one to find answers to legal questions being posed to courts, one is to look at the law, in order to determine the right answer(s) to the question being posed. This is the view that the law has answers to all legal question, and one is to look within the law to find the correct answer. This view is supported by both Hart and Dworkin.
The doctrine of binding judicial precedent is perceived as the core element of the English legal system. The doctrine is perceived as the ‘rule of thumb’ judges follow in deciding their judgements. This involves taking into account long-standing precedents, which only matured from the nineteenth century. A fundamental element of common law systems is the application of the principle of stare decisis , which means ‘let the decision stand’. This in practice means that judges in lower courts are bound to decide cases using existing legal principles made by superior courts.
When a judge delivers judgement in a case he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and arrives at a decision, for which he gives the reason (ratio decidendi). OBITER DICTUM - The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum. The binding part of a judicial decision is the ratio decidendi.
What are the necessary requirements of the doctrine of proprietary estoppel and discuss whether the notion of unconscionability alone lead to a successful remedy. Furthermore, examine how constructive trusts and proprietary estoppel allow the courts to stray from relevant statutory provisions and empowers judiciary to have more discretion where equitable remedies are queried. The doctrine of Proprietary estoppel is developed by the Chancery Court of King John to manage the problems inherent with the rigidity of the common law, it is an equitable remedy. The doctrine contains 4 elements; assurance, reliance, detriment and unconscionability. This doctrine appears to arise from the LP (MP) Act .
Principles he argued acted not merely as a guide but also as a restraint upon judges; he argued this was crucial to ensure both legal certainty and to reduce the prospect of judges acting outwith their powers for justification. Judges therefore would be expected to weigh in legal principles, as well as legal rules when reaching their judgment. This is a somewhat accurate analysis, particularly when the concept of stare decisis is considered, which is the doctrine where courts of equal or lower standing are bound previous court decisions on similar principles. In practice this binds the judiciary to past legal principles in most cases; Dworkin however failed to account for when judges ought to depart from established principles. In particular where judges feel it would be detrimental to continue to follow past precedent.