Is Judicial Precedent an efficient System of Lawmaking?
Judicial precedent often referred to as case law, is one of the main
sources of English law. Its roots go back to the early common laws of
the country. It is based on the Latin maxim Stare decisis et non
quieta morvere, which loosely translated means, stand by what has been
decided and do not unsettle the established.
In order for the judicial precedent system to work, an accurate
detailed method of reporting cases is of great importance. After each
case, a judge will give a speech, which contains two parts. The most
important part is the section that contains details of the principle
of law that has been used to base his decision on. This is called the
ratio decidendi and means reason for deciding this is the part that
creates binding precedent. The rest of the speech is called the obiter
dicta, which means other things said. Although this part does not
create binding law it may be persuasive, other judges may refer to it
and speculate as to what the decision would have been if the facts of
the case had been different.
This all seems very simple, but in fact, it can be very difficult to
find the all important ratio decidendi in the speech. The speech is
not given in two parts, the ratio decidendi and obiter dicta are given
in a continuous form, not headed up specifying the two separate areas.
As a result, it is often difficult for judges looking at the case to
separate the obiter dicta from the all important ratio decidendi. It
has been known for the Law Lords in the House of Lords not to be able
to find the ratio decidendi in a case. Add to this the fact that there
may ...
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...fficient way of lawmaking.
Whilst it is often said, that for every advantage of precedent, such
as certainty, consistency, precision and flexibility, that it has a
corresponding disadvantage, one of the disadvantages that is not
mentioned, is that the public do not have access to the law reports.
In order to find out what the law is in a certain area one has to pay
for the services of a solicitor.
Whilst moves are being made in other areas, for example, the recent
removal of most of the Hereditary Peers from the House of Lords to
bring things more in line with today's governments policy of openness,
equality and not least, acceptability. A lot of work has yet to be
done to make our legal system more efficient, in order for it to
respond quickly enough to today's societies, fast moving, ever
changing values.
In addition to this, the analysis of law was not considered thoroughly during judicial decisions. Therefore, the court uses backward reasoning where it uses the expected results it wants to deduce to make decisions. Such activities in the justice department have a lot of impediments to the impartiality of judicial system. The rights of the criminal in many instances are affected by the use of such methods to deliver justice. According to Marshall, the legal analysis used to determine the outcome of the courts has reduced since the changes in the judicial system. The rights of the individuals have significantly reduced with the changes in the court system because only the nine judges are privy to the outcome of the court proceedings; they are also not liable to the questions that may be raised about the legality of their
The Role of Courts in American Politics The third branch of the federal government is the judicial branch. Before the existence of the Constitution, a system of state courts was in place. Through much controversy and compromise a decision was accomplished, which put in place the Supreme Court. In Article III, Section 1, "The judicial power of the United Statesshall be vested in one Supreme Court and such inferior courts as the Congress may from time to time ordain and establish." The Supreme Court was initially set up as a part of the separation of powers in the American political system.
In this course we have had a brief but informative insight into the roles of government, and the Supreme Court. The Supreme Court is perceived as one body of the federal government, and it is a powerful one at most times. With of all this power and the decision making, it is normal to wonder if the court is influenced by political views, beliefs or even ideas. It is being questioned in our course if the Supreme Court is influenced by the dominant political ideas of the time and if the courts just follow those ideas and that is the topic I plan to address, but I also wish to address that politics are not the only influence on the Supreme Court and its decisions. I do feel that the court has been influenced because with so many views and beliefs it’s hard not to have an opinion even in such political matters. Although situations in political vary so do the opinions of those in the court, the effect is no different in any given situation. The influences are simply not just political either, but that is where the major opinion lies. I plan to look at not only how politics influence our Supreme Court, but how other matters such as personal opinion and background influence the court’s decisions on political discussions as well.
On June 26, 2015, The U.S. Supreme Court ruled that same-sex marriage is a fundamental right in the decision on Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. This controversial decision overturned the law of more than 17 states. In the 5-4 decision, Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan voted with the majority and Justices Roberts, Scalia, Thomas and Alito were dissenting. At the heart of the controversy is the philosophy of judicial restraint and judicial activism. Was the Obergefell decision an example of judicial activism? Certainly, because it declared state laws banning same-sex marriages as unconstitutional. The Court’s decision, which was based on precedent and interpretation of the Constitution, was just.
was clear in his dissenting opinion of the current appeal court and the lower court that the area of
changed in terms of its power of deciding cases. It has on the other hand
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
all judiciary cases in which any fact is involved,) or may they act by representatives, freely and
“ ….Judgments, right or wrong. This concern with concepts such as finality, jurisdiction, and the balance of powers may sound technical, lawyerly, and highly abstract. But so is the criminal justice system….Law must provide simple answers: innocence or guilt, freedom or imprisonment, life or death.” (Baude, 21).
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.
Ratios traditionally measure the most important factors such as liquidity, solvency and profitability, as well as other measures of solvency. Different studies have found various ratios to be the most efficient indicators of solvency. Studies of ratio analysis began in the 1930’s, with several studies of the concluding that firms with the potential to file bankruptcy all exhibited different ratios than those companies that were financially sound.
The significant impact Robert Dahl’s article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker” created for our thought on the Supreme Court it that it thoroughly paved the way towards exemplifying the relationship between public opinion and the United States Supreme Court. Dahl significantly was able to provide linkages between the Supreme Court and the environment that surrounds it in order for others to better understand the fundamental aspects that link the two together and explore possible reasoning and potential outcomes of the Court.
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.
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.