The common law is usually called the law established on the basis of judges’ decisions, therefore, judgments and decisions made by judges play an important role in crystalizing the source of law in common law countries. This nature of the common law derived from a doctrine that has developed officially since the 19th century, namely ‘the doctrine of precedent’ or ‘stare decisis’. This doctrine has been seen as ‘the cornerstone of a common law judicial system’ in general since it was approved as a compulsory principle of English law. The doctrine strictly requires courts in a common law country to adhere and apply directly the decisions and arguments in the judgments concluded by other courts in that state when it deal with cases. Nevertheless, the court does not have to follow previous positions and conclusions of all courts in the same judicial system, stare decisis only requires the court to adhere previous decisions of courts which stand at
However, this fact could not be concluded that judges in this period had considered themselves to be bound by the doctrine of precedent, many judges including Vaughan expressed their position common law courts obliged to follow statutes rather than precedent. Thus same as the 16th century, the doctrine of precedent did not exist as a dogma in English common law in that period although the doctrine became a wider range practice in common law courts. However, the establishment and evolution of the doctrine of equity since the late 17th century gave the doctrine of precedent a hand to develop when judges of equity court, namely the Court of Chancery, considered decisions of the court in previous cases are compulsory rules which they must abide to cope with cases submitted to the court
The Pennsylvania Supreme Court held that although the doctrine of stare decisis plays an important role, standing precedent can be abandoned to allow for evolving societal standards of behavior or expectations.
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])
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).
Although it is required to consider the common law rule, principles and to apply settled laws to new facts. The court is also restricted by different legal doctrines of precedent, separation of powers and the court is required to make Australia laws remain predictable and certain.
The introduction of common law allowed for determination of which behaviors are crimes and what the appropriate punishment should be. Regoli and Hewitt (2008) states, “One of the most important concepts operating in common law was the doctrine of precedent, or stare decisis (literally “to stand by the decisions”). The doctrine allows courts to interpret and apply law based on previous court decisions.” Judges were required to decide new cases based on principles established in previous cases. They were required to interpret the law in the same way and follow the precedent. Many Americans felt that the English system of law was inappropriate for their new nation. They feared citizens would not understand their roles and responsibilities under the
The application of these laws in the real world has become a hot debate as to whether the Australian legal system is based on justice and fairness. This is strongly related to the judge-made laws. Judge-made laws or common laws rely on the doctrine of precedent. This means that the decisions made by judges in the courts are based on previous cases that have similarities with other cases. The decisions in the doctrine of precedent are normally based on the higher authority court decision.
Stare decisis comes from the Latin language and it means “to stand on decided cases.” Stare decisis is a flexible doctrine of the court, recognizing the value of following prior decisions or precedents in cases similar to the one before the court. The courts practice of being consistent with prior decision based on similar facts. This doctrine had become so fundamental to the development of ...
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
An important point to keep in mind is that all binding decisions are initiated at the highest court at either the federal or state level. These decisions are precedent only in the jurisdiction where the court presides. Stare decisis refers to the practice of the courts adhering to previously rendered decisions. This is especially true involving United States Supreme Court decisions that have binding authority on both the federal and the state courts. Remember that court decisions in the same jurisdiction only have persuasive authority which is not binding.
1.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 clear way of distinguishing the ratio of a case…
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.
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,
The Rule of Law means that the state should govern its citizens, in a way which works with the rules that have been agreed on. The Rule of Law is simply a fundamental principle of our constitution. Britain and other Western democracies are different in that Britain has an unwritten constitution, meaning that our constitution is not found in a certain document but that we actually have a constitution from the rules about who governs it, and about the powers they entail and how that power can be passed or even transferred. The Constitution includes; Acts of Parliament, Judicial decisions and Conventions.There are three main principles around the Rule of Law being the separation of powers, the supremacy of Parliament and the Rule of Law. The
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...
It is a decision made by judges on written and unwritten law on relevant issues in an actual case that comes up before them. It may bind others in the similar dispute in the future. The decisions are reported and can be source from Authoritative Law Journals. Judges decided cases following certain accepted principles termed precedents (Black and Bell, 2011). Precedent can be defined as the source of law on determining later cases involving similar facts or issues. Generally, a judge is bound to follow the decision of a previous judge in similar circumstances. A judge’s decision in an earlier and similar case constitutes a precedent, and if that precedent comes from a court superior in the hierarchy to the court in which the present case is being tried, that precedent must be followed. Precedents are decisions reached by their predecessors in earlier similar situations. The types of precedents are Authoritative Precedent, Declaratory precedent, Original precedent, persuasive precedent, distinguishing and overruling. The essence of this doctrine is called Doctrine of ‘Stare Decisis’.