The operation of the doctrine of judicial precedent

A reference to the unwritten law does not mean that the law is literally unwritten.

The operation of the doctrine of judicial precedent

Related Introduction The doctrine of judicial precedent is based upon the principle of stare decisis, which means the standing by of previous decisions. This means that when a particular point of law is decided in a The operation of the doctrine of judicial precedent, all future cases containing the same facts and circumstances will be bound by that decision as signified in Donoghue v Stevenson [1] and Grant v Australian Knitting Mills.

This will be done by firstly considering the role and importance of the doctrine, followed by a review as to its advantages and disadvantages. Once the relevant information has been gathered an analysed, an appropriate conclusion will then be drawn. Authoritative precedent binds all lower Courts, whilst persuasive precedent does not actually have to be followed and is intended to merely persuade the Court into making a particular decision.

This will provide greater certainty to the judicial system, which is vital in maintaining the interests of justice. Advantages There are many advantages to the doctrine of judicial precedent with one of the main advantages being the ability to save time when making a decision on a case.

The doctrine of precedent is a fundamental constraint on judicial decision-making in Australia. The general idea behind the doctrine of precedent is that judges, when they are deciding cases, must pay proper respect to past judicial decisions. Sometimes this means that judges are bound to apply the. The doctrine of precedent means that the following of the legal principles made by the higher courts and the court of appeal in prior cases. Once judges in the higher court, normally means the House of Lords or the Court of Appeal make a decision to a case, it is come to binding precedent that the lower courts have to follow in the future cases. THE DOCTRINE OF JUDICIAL PRECEDENT AND ITS IMPLEMENTATION IN MALAYSIA MALAYSIAN LEGAL SYSTEM (LAA) The doctrine of judicial precedent is concerned with the importance of case law in Malaysian system. It is really the lawyer’s term for legal experience. THE DOCTRINE OF JUDICIAL .

This is because the Court will not be required to analyse the case and make a decision as they will already have the answer before them, which is a significant benefit within the judicial process. Another advantage, which has already been mentioned, is the consistency between cases. This strengthens the system and is also likely to reduce crime since those who are aware of the consequences will be less likely to commit a criminal offence.

This is of course unless there is some further fact which is material to the decision as the Court will then be capable of reaching a different conclusion. Therefore, a judge will be less likely to make a mistake when reaching a conclusion and a decision will be deemed to be a lot stronger.

This would be unfair and society would most likely lose confidence in the justice system. Judicial precedent also prevents judges from producing prejudicial decisions since a judge will often be bound to follow a previous decision even if he disagrees with it.

Another advantage that exists is the ability to develop the law even further. Making law in decided case provides an opportunity for growth and legal development and ensures that the law is able to keep abreast with the continuous advances in society.

The doctrine of judicial precedent can also be flexible in that judges are able to make decisions on a case by case basis according to the individual facts and circumstances.

Because there is a centralised legal system, it is much easier for judges to follow. Arguably, there are many advantages to the doctrine of judicial precedent, yet is unclear whether these outweigh the disadvantages which will be discussed in the next section.

Disadvantages Whilst there are many advantages to having a doctrine of judicial precedent in the, it often said that the doctrine introduces unnecessary restrictions into the law. However, the existence of judicial precedent often prevents judges from developing legal doctrine in accordance with societal developments.

This may not be appropriate in modern society and it seems as though further advancements may need to be made. This has a negative impact upon the role of judicial precedent and highlights the complexity of the system. This is because a certain area of the law may have developed over time, yet judicial decisions may not reflect the changes that have been made.

Another disadvantage is that the volume of cases may result in too many precedents, causing confusion. It has also been put forward that judges may look for reasons not to follow a decision and therefore produce an illogical decision.

Judicial precedent may also cause injustice as the overruling of an earlier case may spark outrage if individuals have conducted their affairs in accordance with a decision.

Since the Human Rights Act was enacted, the doctrine of judicial precedent has in fact been weakened. This is because legal rules and principles must be read and given effect in a way that is compatible with the rights that are contained under the European Convention of Human Rights Any legal rules or principles that appear to conflict with such rights must therefore be amended to ensure adequate protections are being provided to individual human rights.

Under the judicial precedent doctrine the Court would have been required to follow the decision in Plummer v Charman. Therefore, it could be said that judicial precedent is not effective in cases concerning human rights.

Subsequent to the enactment of the HRA, it therefore seems as though the judicial precedent doctrine is largely being undermined since the judiciary are no longer required to follow previous decisions if they are incompatible with the Convention.

This will only be applicable in cases concerning human rights and so the judicial precedent doctrine will still be upheld in the majority of instances. Furthermore, once a human rights issue has been recognised subsequent Courts will then be required to follow the position that has been taken.

This re-instates the judicial precedent doctrine further and maintains consistency in the judicial system.When a court binds itself, this application of the doctrine of precedent is sometimes called horizontal stare decisis.

(Judicial Precedent) by Lord Gardiner L.C.)'. Binding precedent in English law. Judges are bound by the law of binding precedent in England and Wales and other common law jurisdictions.

This is a distinctive feature of the. The doctrine of judicial precedent means that judges can refer back to previous decisions to help decide similar cases where the law and facts are alike. This doctrine is concerned with the influence and value of past decisions of case law and the judge's prior legal experience.

THE DOCTRINE OF JUDICIAL PRECEDENT AND ITS IMPLEMENTATION IN MALAYSIA MALAYSIAN LEGAL SYSTEM (LAA) The doctrine of judicial precedent is concerned with the importance of case law in Malaysian system.

It is really the lawyer’s term for legal experience. THE DOCTRINE OF JUDICIAL . The doctrine of judicial precedent, which states that the court must stand by what has been decided in a case when deciding a new case by a judge in court, is commonly known among the countries that practice common law system, but the operation of the doctrine is said to differ.

Judicial precedent is source of law Judicial precedent is the source of law where past decisions create law for judges to refer back to for guidance in future cases.

Precedent is based upon the principle of stare decisis et non quieta movere, more commonly referred to as ‘stare decisis', meaning to . The Doctrine of Judicial Precedent you) ll out your claim form you must identify what it is you are suing for—otherwise neither the court nor the defendant can respond.

The operation of the doctrine of judicial precedent
What Is the Doctrine of Judicial Precedent? | caninariojana.com