In Whose Jurisdiction Is the Creation of a Judicial Precedent - Assignment Example

LAW MAKING Question 1: Definitions (a). Act of parliament Acts of parliament are statutory laws made by parliament in its legislative role. Their legislation involves a process in which laws are proposed before the parliament as bills, are debated, and eventually assented to by the queen. Once approved by the queen, a proposed bill becomes law and is superior to common law. An example of acts of parliament is the “freedom of information act” which was proposed to parliament and assented to in 2000 (Harris, 2007, p. 190). (b). Delegated legislation Delegated legislation refers to laws made by a body or an entity other than the parliament. The body must however derive its legislative authority from parliament through an act of parliament known as parent act. An example of a delegated legislation is a set of city bylaws formulated by local authorities. The local authorities are authorized by parliament to make byelaws for regulations in their council’s jurisdictions (W100, 2011, p. 115). (c). Supreme Court and its functions The Supreme Court is the highest court in the judicial structure. Its functions include hearing appellate cases from the court of appeal. Its jurisdiction also extends to appeals from the high court and covers both civil and criminal cases (W100, 2011, p. 149). (d). The golden rule The golden rule is a statutory interpretation rule in which the courts deviate from literal meaning of words of a statute to ensure that interpretation of the statute is reasonable and consistent. The case of Lewis v Hilaire et al 1970 15 WIR 192 is an example of an application of the golden rule (Antoine, 2008, 252). (e). Directive A directive is an order from an international body to its member countries requiring the members to adjust their domestic laws. Working time directive is an example of a directive from the European Union (W100, 2011, p., 226). Question 2: Advantages and disadvantages of law making through Westminster parliament Legislations made through the Westminster parliament, the parliamentary system that exist in Britain, has a number of advantages. The parliament’s House of Commons is composed of elected members from all parts of the country, a feature that makes its legislative process representative of the people’s opinions. This makes parliamentary legislation a democratic process because it gives people an opportunity in making law making. The sources of parliamentary legislations, which include bills from members of parliament also means that citizens have an avenue of instituting legislations through their members of parliament in private member bills. Similarly, citizen’s opinions can be used to draft ‘government-sponsored’ bills. Parliamentary legislation is therefore a democratic process (Gray, 2004, p. 30; W100, 2011, p., 104). Parliamentary legislation is also flexible with respect to time. This is because a legislative process can be instituted at any time as opposed to other sources of legislations that depends on emergence of circumstances. Judicial legislations, for instance, relies on existence of a case in court before a principle can be laid. Parliamentary legislation can however be instituted at any time by tabling of a bill because the process depends on the life of the parliament and not a phenomenon. Another advantage of the parliamentary legislation is that its process is formally outlined with “checks and balances to ensure that the law is appropriate” (Gray, 2004, p. 30). A bill is particularly scrutinized and debated upon by members of both houses, House of Commons and House of Lords to ensure appropriateness before it is passed into law (Gray, 2004, p. 30) Legislations made through the Westminster parliamentary process also exhibit a number of disadvantages. The process is subject to political influence that arises from the fact that political parties’ manifestos are acceptable sources of bills for parliamentary legislation (W100, 2011, p., 92). The party with majority representation in parliament can therefore easily influence the content of the bill, its debate, and the final voting for passing it into law. This can lead to biasness and improper legislation due to political differences among political parties in the house (Gray, 2004, p. 30). Acts of parliament are also difficult to understand because of the terms and jargons used. This makes it difficult for laypersons to understand the contents of the acts. The major disadvantage of parliamentary legislation is however, the involved complexity of the legislation process and the long time that is required for a bill to pass into law. There are laid down procedures that must be followed within stipulated periods. A bill must for example be tabled in parliament, debated on, subjected to a select committee before a final approval by both houses and the royal assent (Gray, , p. 29, 30). A bill has to pass through a number of formal procedures before it becomes law. The first stage of a bill in parliament is the first reading in which the title of the bill is read to members who vote on the bill. If the bill is approved, it is passes to second reading stage at which members of the house debate and vote. A vote for the bill moves it to the committee stage at which few members of the house are selected to further review the bill. Upon completion of its duty, the committee brings back the bill to the house’s reporting stage at which members reviews the committee’s recommendations and makes necessary amendments. The bill is then passed to the third reading at which a final vote by the house is conducted. If approved, the bill is passed to the other house for consideration and if approved, is taken for royal assent after which it becomes law (Gray, 2004, p. 29; W100, 2011, p., 107, 108). Question 3: The role of the judiciary in the law making process The interpretation role of the judiciary contributes to law making through establishment of judicial precedents and interpretation of statutes. Precedents A judicial precedent is a principle of judgement by a court that has been recognized as an authority in making judgements in similar cases. The doctrine of ‘stare decisis’ that binds future judgements to the the laid down principles gives precedents an authority of law. Establishment of a principle is therefore an equivalent formulation of law. Based on the principle of ‘stare decisis,’ decisions by judges of a court are bound by interpretations of ‘ratio decidendi’ of judgements by superior courts. Similarly, precedents set in the court of appeal bind all judges of the court and those of lower courts. The doctrine of judicial precedents within the court of appeal is however exempted under a number of circumstances (W100, 2011, p. 163). Two precedents, made in the court of appeal, that are in conflict are not binding to a court of appeal judge. The judge can therefore establish a new precedent or apply a different but appropriate precedent. Similarly, a court of appeal decision that has been overruled by the Supreme Court ceases to bind. Precedents that are made in ignorance of some rule of law, whether a statue or a precedent, as well as those that conflict the judicial court of the European Union are not applicable as sources of law under case law. A judge can also deviate from an existing precedent to establish a new principle of law in the form of an overruling precedent or a distinguishing precedent (W100, 2011, p., 168). Establishing an overruling precedent involves abolishing an existing precedent and substituting it with a new one. This can only be done by a higher court than the one that set the previous principle. An overruling precedent therefore improves the basis of law by striking out inappropriate principles to the rule of law and the doctrine of natural justice. This is because an overruling precedent can only be established on grounds that the existing one had fault or undermined justice. A principle of law can also be established through distinguishing precedent if a judge can determine difference in facts between a case at hand and the case upon which an existing precedent was developed. Both the old and the new precedents becomes applicable (W100, 2011, p., 170, 171). Interpretation off statutes The role of judges in interpretation of legislation is extended to provision of appropriate meaning to a statute, especially when the statute is likely to fail in achieving its objective. Some of the rules of interpretation include the “literal rule,” “the golden rule” and the “mischief rule” (Harris, 2007, p. 212). In applying the literal rule, the courts use the literal meaning of the words of the statute. There are however instances in which application of the literal rule to interpreting a statute may not yield justice in a case. This occurs when the statute to be applied is “ambiguous or obscure, or leads to absurdity” (Harris, 2007, p. 211). The literal rule may also be deviated from if it can prompt inconsistency in administration of justice. Under the golden rule, a judge develops an interpretation that that eliminates “absurdity or inconsistency” that would be associated with the literal rule. The mischief rule is on the other hand applied in cases where application of the literal meaning of the words of the statue may not remedy a mischief that the statue aimed at resolving. The golden and the literal rule therefore establish principles of law that statutes had failed to identify. The judges therefore make laws by establishing principles through precedents and interpretation of statutes (Harris, 2007, p. 212). Reference list Antoine, R. (2008). Commonwealth Caribbean Law And Legal Systems. Oxon, UK: Routledge Gray, D. (2004). Public services (uniformed). Oxford, UK: Heinemann Harris, P. (2007). An Introduction to Law. Cambridge, UK: Cambridge University Press W100. (2011). W100 rules, rights and justice: An introduction to law. London, UK: Open university Read More