What the Doctrine of Judicial Precedent Depends on - Essay Example

'The doctrine of judicial precedent depends on the hierarchy of the courts, the written records of cases and the approachof the judges' Introduction Doctrine of Precedent takes into contemplation the significance of case law within the judicial system. The precedent is a term utilized, by lawyers, to refer to legal experience. The doctrine implies that judges with the English legal arrangement offer judgment in relation to certain rules presented by previous cases. The ruling is delivered even before the court obtains facts concerning that case. In case similar cases emerge in the prospect, similar rules or rationale is utilized in conveying justice through legal decisions. The doctrine finds basis on stare decisis meaning that considering previous decision made on similar cases. A decision made at some point in law is considered applicable to cases that bear similar facts. For the doctrine to function in an effective manner, it is necessitated that point of law within certain cases is established. During conveyance of justice, the judge ought to offer the rationale under which he or she provides certain judgment and not another. The doctrine presents general rule where all courts are required to follow the same rationale in delivering decisions that were developed in courts that bear higher ranks (Mitchell & Dadhania 2003, 61). The doctrine is reliant on the chain of command of the court system, previous case records and the attitude or approaches that the judges utilize. The hierarchy of the court system in the English context offers a better comprehension of precedent doctrine. The courts are organized, in terms of their capabilities or power, to command. The hierarchical structure bears five divisions under which the precedent is applied. These divisions offer judgments in relation to the cases carried out in previously from a superior court. The precedents that transpire in higher courts are considered applicable to lower and middle courts without any doubt. Therefore, decisions undertaken can be carried out without further probe into the cases, as long as the material facts and other facts are almost similar to another case undertaken in the past (Mitchell & Dadhania 2003, 62). The doctrine is reliant on the hierarchy that the court system presents in all its operations. Every court bears a given standing in relation to certain cases with respect to other courts thus affecting the provision of decisions on certain cases. These hierarchical systems ought to be considered in making decisions that involve the precedent doctrine. The lower courts can comfortably apply decisions presented by the highest ranked courts. Similarly, decisions that emanate from House of Lords are applicable to the rest of the courts within the legal arrangement with the exemption of the House of Lords (Kennedy 1994, 1). Therefore, its decisions find appliances to all systems of legal arrangements but the decisions made by the house cannot be applied to cases that concern it. Supreme Court is considered top in the rank with regard to the legal arrangement prevalent in English Law. Previously, the Supreme Court functioned as the House of Lords although this was changed in 2009 (OUP 2011, 11). However, the powers were never altered meaning that only the name changed. The Supreme Court comprises of 12 justices with fives of these being independent of any previous precedents. That is they are not bound to pursue decisions made in any previous cases. In addition, their judgments are applicable to the rest of courts that lie below them. In practicality, justices in this legal level are likely to follow their decisions that they had previous offered in similar cases. In order for them to change their personal judgments, a vivid reason ought to crop up. Additionally, these justices preside over judgments from Commonwealth nations. Under such circumstance, the justices are considered as the Privy Council (OUP 2011, 11). In principle, the decisions developed by the Privy Council find no application in English legal arrangements. However, in a practical manner, they find application since they are considered similar to decisions made by the Supreme Court. Certain cases may necessitate utilization of justices exceeding the normal five justices. The court bears no authority with respect to turn over a given decree. Court of Appeal precedes the top court in the legal arrangement with its decisions finding applicability in all courts that stand below it. Its decisions find applicability in all the prospect sittings that the court undertakes. Under certain circumstances, the court may not apply its previous judgments. The court may not apply its judgment if they court has two disagreeing decisions on similar cases thus necessitate further decisions on the decisions to pursue or overrule (OUP 2011, 11). Secondly, overruling of a previous decision by the Supreme Court may make the Court of Appeal not to pursue a certain decision. Finally, certain decisions may not be pursued, if previous decisions were developed through ignorance and overlooking of certain statutes. The principles specified find appliance to Civil and Criminal sections of the court although Criminal Division has the tendency to move away from preceding decisions (OUP 2011, 11). In this court arrangement, three judges preside over although it may increase to five. However, the increment may not imply that higher chances of utilization of previous decisions are possible. Divisional Courts are regarded as High Court, and appeals are undertaken although the quantity of judges involved is either two or three. The decisions made in one court are binding to the rest of the courts within this division, in addition, to other courts at the lower rank than divisional courts. However, their decisions don not find applicability at courts above them that is Court of Appeal and Supreme Court (OUP 2011, 12). Decisions delivered on certain cases in the High Court emanate from the Court of Appeal and the Supreme Court. Decision that are delivered on various cases at this level find applicability or are binding to courts that appear at a lower rank in relation to the hierarchical structure. In case, a single judge within the legal arrangement provides the decision other judges in their judgments cannot apply the decision. Since two or more judges preside over any matters in the legal arrangement of a Divisional Court, the decision provided are applicable or binding for similar sittings in the prospect (OUP 2011, 11). Inferior courts are at the lowest rank with respect to the hierarchical structure and comprise Crown Court and Magistrates Courts. Their decisions are not applicable to the rest of the courts, and the judges involved in these courts have no capacity to make precedents (OUP 2011, 11). Therefore, the doctrine does not pertain for them within the hierarchical structure. Written records hold different judgments or precedents that are utilized in courts. These written records offer information concerning decisions made on certain cases in previous sittings. The written records are provided as per the court hierarchical structure. Written records from cases from the highest rank of the judicial system are utilized in most imperative cases that are undertaken by the Supreme Court. These written records can be utilized either in the precedents or overruled, depending on various factors. However, in case the written records present similar facts, principles and bear certain similarities, the decisions presented in the written records can be applied effectively. Consequently, the written records offer precedents that can be considered either persuasive or stringent in its appliances. The precedents or previous decisions presented in written records are considered binding at certain circumstances. These include if the judgments bear a statement of law, as well as if it is considered an element or component of ratio decidendi of a previous sitting (O'riordan 2002, 55). Other considerations are; if the decisions that exist in written records were provided by a court with a high hierarchical rank and the decisions find application in the present cases. In various circumstances, judges may offer a suggestion of laws that are applicable to various cases, although they may not be purposely, directed towards the ultimate decisions. In accordance to law, this is regarded as obiter dicta that imply that the suggestions presented are only supplemental (OUP 2011, 13). The supporting statements and explanations are supposed to clarify the rationale for taking certain decisions with respect to the written records. The obiter dictum serves as the introductory component in a certain case (O'riordan 2002, 55). However, it is not considered vital to the decisions provided since it is only supposed to make the presented situation to be clearer. This element comprises of the thoughts that the judge presents, his or her explanation of the reasons for arriving at certain final decision instead of another. Additionally is presents ideas on the way the judge is going to employ the previous decision to the current case that has been presented. The precedents presented in written records are not followed; the approaches that the judge utilizes have profound effects on the case under scrutiny. The approaches that are utilized in such conditions depend substantially on the judge’s attitude and similar experiences in previous court cases. The most common approaches that judges utilized in cases are either utilization of binding decisions or overruling decisions carried out in previous cases as presented in written records. Most judges often utilize the binding approach as per the provided facts and statutes. The binding approach applies if the legal point that involved in the previous sittings is similar to the current case. The binding approach is also utilized in court cases in which earlier decisions are delivered on the grounds of hierarchical structure of the court system. Contrary to the binding decision approach, persuasive approach can be utilized. The approach is applicable under various conditions such as opposing decisions presented by the Supreme Court, the ratios that emanate from courts that are lower in the hierarchical structure. The judges may also utilize distinguishing in which judges, keep away from previous judgments that they are required to follow. Distinguishing assists in preserving judicial precedent and allowing flexibility in the law. Distinguishing allows the judge to deem certain cases different from previous ones in terms of material facts thus offering different decisions or judgments. Therefore, the judges can divert from precedent or previous decisions as presented by written records for similar cases. The judges may overrule certain judgments, which imply that a dissimilar legal ruling is presented, and supersedes the preceding legal ruling presented in a lower court with respect to hierarchical structure (OUP 2011, 13). The case presented at the current time is considered different and the precedent presented by written records from other cases is kept back. The higher court obliterates the previous written records of precedent and contemplates it a wrong or incorrect. Similarly, the court may reverse precedents that appear in lower courts once the case is taken to a higher court. The reversal of the provided judgment at a lower ranked court within the hierarchical structure is superseded the decision offered by the higher court (OUP 2011, 13). The approaches that the judge utilizes are reliant on various factors as presented although, for certain judges, their attitudes or feelings concerning the case may dictate the approaches that they utilize. This is most common in courts that have higher ranks in the hierarchical structure although this decision is obviously shared by several judges. However, the number of judges within a sitting does not imply that the possibility of utilizing either the binding or the persuasive precedents is high. Consequently, it has some substantial influence on certain decisions although on rare cases. Conclusion All these three elements are interwoven in the provision of the doctrine of the precedent thus allowing for delivery of justice. The elements show dependency that exists within the three elements. In order for an individual, to bear a better comprehension of the doctrine, an understanding of the hierarchical structure of the court is required. This allows one to understand how the precedents apply as per the hierarchical rank of each court starting from the highest to the lowest ranked court. Comprehension of the hierarchical structure of the court is imperative because its enables one to comprehend various decisions made by the judges within a certain hierarchical structure. The written records offer precedents or previous decisions that the judges utilize to judgments for current cases thus presenting the relation between these elements. Bibliography Kennedy, B. 1995, Creating And Disseminating Law in a Democratic Society, Ohio: Freedom Paper Series. Mitchell, A. & Dadhania M., 2003, As Level Law. USA: Cavendish Publishing. O'riordan, J. 2002, AS law for AQA, Oxford, Heinemann Educational. OUP 2011, The Doctrine of Judicial Precedent. Retrieved from < http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapter/1408254093.pdf > Read More