Understanding the Law - Essay Example

?Understanding the law Introduction Coexistence of people within a society is associated with interpersonal interactions in relations. This has led to the need to protect people’s interests from exploitation and oppression by other parties. Law is defined as a set of rules that governs relationships among people in a society. It outlines rights and obligations of every individual or entity and defines wrongs and rights. The law also provides for adjudication of disputes and outlines penalties for legal wrongs. This paper seeks to discuss the doctrine of judicial precedents and application of jury in administration of justice. The paper will explore concepts of the two legal applications. Judicial precedents Judicial precedents, as defined by Robertson, are a source of law that originates from the judicial system. The doctrine of precedents establishes former decisions by judges to form ground for decisions to be made by other judges in future cases. The doctrine is based on the principle that an established rule of law through decisions of judges should remain standing. Robertson argues that the doctrine establishes ground for “fairness and certainty of law” (Robertson, 2010, p. 18). The doctrine of judicial precedence is a deviation from the traditionally perceived judicial role of interpretation of the law for implementation. While the primary role of the judiciary is to determine the best meaning in application of law in litigations, the doctrine of judicial precedents offers the judiciary a law making authority. This is because judicial precedents are recognized source of law in which an already established decision is to be applied in future cases involving similar facts. Application of judicial precedents however relies on two principles, ratio decidendi and obiter dicta (Blum, 2007, p. 37). Ratio decidendi and obiter dicta The application of judicial precedents recognizes ratio decidendi and obiter dicta as fundamental tools in interpretation of the law. Ratio decidendi is the legal reason upon which the case that is referred to for interpretation was made. It defines the principle of law that the judge, in the previous case, relied on. Obiter dicta on the other hand refer to other arguments, besides applicable principles of law, which are used in deciding on a case. While the binding principle of judicial precedents applies to ratio decidendi as applied in the original case, obiter dicta do not bind. This means that in cases where a judge is bound to use a precedent, the judge must apply the rules of law that were applied by the former judge as ratio decidendi. Other elements of the precedent case that do not form part of the precedent’s ratio decidendi are not binding (Robertson, 2010, p. 20). Types of judicial precedents Application of judicial precedents defines the types of precedents that have been identified in the judicial system. A judicial precedent can be original, binding, or persuasive. An original precedent is a first establishment of rule of law in cases where no precedent has been laid. This occurs when the facts of the case at hand does not correspond to facts of any other case for which a rule of law has been established in interpretation of the law. The presiding judge therefore establishes a precedent to the case called original precedent. A binding precedent is on the other hand a judicial decision that has already been established in a previous decision and whose application binds a judge. The principle of a binding precedent imputes a judge’s obligation to apply an already established precedent irrespective of the judge’s opinion over the principle of law as was established in the earlier case. This application is based on the rule that decision of a higher court binds judges of lower courts (Robertson, 2010, p.18- 19). Persuasive precedents are however not strictly binding to a judge as the judge has the freedom to either apply the precedent or not. This means that unlike in the case of a binding precedent, application of a persuasive precedent is at the discretion of the presiding judge. A number of circumstances make a precedent persuasive as opposed to binding. A precedent is for instance persuasive if it was established by a lower court as compared to the presiding court. Since the doctrine of stare decisis applies to judges of lower courts, a judge is not bound by decisions of lower court judges and magistrates but either apply it or use it as a guideline or disregard it. A judge at discretion can also apply a statement made as an obiter dicter in a binding precedent. Similarly, precedents with dissenting decisions as well as those set in other countries are persuasive to a judge. Application of judicial precedents as a source of law therefore relies on the structure of courts for applications. Every single lower court is bound by precedents set by judges of higher courts unless such precedents are repugnant to application of the rule of law (Robertson, 2010, p.19-21). Establishment of judicial precedence Though the general principle is that judicial precedents are binding, especially to judges of lower courts, there are circumstances under which a judge can avoid a precedent and on the contrary establish a new precedence. A judge may establish a precedent that directly relies on the rule of law without extending a judicial interpretation. Such an established precedent is called a declaratory precedent. There may however be cases in which precedent is established in avoidance of already established precedents. Such cases include establishment of an overruling precedent or a distinguishing precedent (Duxbury, 2008, p. 27). The allowance for avoidance of judicial precedents provides for flexibility in application of law to take care of emerging issues. An overruling precedent sets aside an earlier established precedent on ground inconformity to the rule of law. The facts of the case at hand are in this case similar to those of the earlier case with the earlier decision being discredited. A distinguishing precedent is on the other hand established on grounds that the facts of the case at hand are different from the facts of the previous case (O’Riordan, 2002, p. 53- 59). While case law has advantages such as “fairness, consistency, saving time,” being a source of law and being consistent with real life experience, it also has disadvantages such as bulkiness, inflexibility and controversies over application (O’Riordan, , p. 53). Conclusion Based on the doctrines of judicial precedents, types of the precedents and the possibility of avoiding a precedent, I agree with the opinion that “it is revolting to have no better reason for a rule of law than that…. it was laid down in the time of Henry IV.” And that “it is more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persist from blind imitation of the past.” This is because even though precedents are binding, there are a number of avenues upon which they can be avoided. Establishment of precedents through overruling and distinguishing precedents particularly implies that the courts have been willing to deviate from precedents that are no longer useful. Features of judicial precedents such as its flexibility to contemporary issues and a source of new laws also provides for dynamism. Maintaining a precedent just because it was laid in the past therefore undermines the doctrine of judicial precedents. The jury system A jury consists of a group of people, acting under oath, who are charged with the responsibility of deciding on a legal case based on evidence. Assisted by counsel of a judge on legal principles in a case, the jury listens to and evaluates evidence before making a decision on the case. Laws in the United kingdom, for instance grants a right to the citizens to be tried by a jury (Fenwick and Kerrigan, 2011, p. 235). This right, to be tried by a jury, is however limited to major offences. A minor crime, defined by a penalty of less than six months of imprisonment, therefore waves a person’s right to be tried by a jury. This therefore defines the scope of the jury’s roles with respect to the nature of the case to be determined. If a cases meets the threshold for a jury trial, either a defendant or a prosecutor has the right to request for a jury process (Bergman and Bergman, 2011, p. 369). Roles of jury Like judges in a judicial process, the jury plays an important role in the determination of cases. Schubert explains the role of the jury to include hearing the facts of the case to the eventual determination of the case, the verdict. One of the roles of the jury is the provision of “checks and balances” in the litigation process (Schubert, 2011, p. 123). This is because the jury system provides for division of roles in the litigation process. While a judge plays all roles in a judicial process that include determination of matters of law and a final verdict, the jury system ensures division of the roles between a judge and the jury. A judge determines legal principles involved in a case and advices the jury on the legal aspects while the jury hears and evaluates facts of the case and determines the verdict. This scope defines three roles of the jury in a case. The first role is to hear the facts of the case as presented by either of the parties to the case, the accused, and the prosecutor. Another role is the determination of the outcome of the case. The final role, as defined by the scope is the checks offered over the powers of a judge in a case. This ensures fairness in litigation process by minimizing possibility of bias. While one judge presides over a case in a judicial process, the jury system involves a judge and many others of the jury team, an arrangement that limits bias since it is not common to select a jury whose members share a vested interest (Schubert, 2011, p. 123). The roles of the jury also include determination of the witnesses whose testimonies are to be considered in determining the case. This role applies in instances where witnesses present conflicting testimonies. The jury therefore evaluate the testimonies to determine the most credible one. This further illustrates the role of offering fairness in the trial process as the jury system decentralizes the decision making authority over facts to be considered in determining cases (Schubert, 2011, p. 123). The role of the jury also includes determination of admissibility of a case. This includes evaluation of a witness and the witness’ evidence to determine the level of credibility and the magnitude of weight that can be attached to the evidence. The jury therefore decides which evidence is to be used in determination of a case and the evidence to be disregarded (Emanuel, 2007, p. 1). Types of cases heard by the jury The scope of jury trials is however limited to particular cases of crimes. There are particularly two classes of cases that cannot be heard by a jury. The first type of cases outside the jury’s jurisdiction is the set of cases that involve minors charged in juvenile courts. Adults whose charges are defined under minor offences are also disqualified from jury trials. This limits criminal cases that can be determined by the jury to major crimes involving adults. A case is said to be major if its penalty can attract imprisonment of more than six years of imprisonment (Neubauer and Fradelle, 2010, p. 340). Selection and composition of the jury The jury is selected through a monitored process that ensures proper scrutiny of potential candidates. A judge plays this role. The selection process of the jury team starts by a random selection of members of the society. The selection must however be representative to eliminate ‘pre-empted’ unfairness. The recruited candidates are then scrutinized to eliminate elements of bias during trial, both proprietary and pecuniary bias. The judge therefore examines factors such as “a juror’s relationship, business involvement, or other close connections” to either party to the case to be determined. Such interest in either the accused or the prosecutor disqualifies a person from being a member of the jury team. The jurors are also examined on their capacity to determine and to tell the truth (Schubert, 2011, p. 167). The composition of the jury has been traditionally maintained at a membership of twelve with a consideration of diversity of the society for fair representation (Neubauer and Fradelle, 2010, p. 340). Conclusion Based on the identified scope of jury trials, I totally agree with the opinion that “we may agree that the defendant’s right to be tried by jury is a very important symbol of our democracy.” In addition, “the fact that ordinary members of the public should be personally involved in the administration of justice creates public confidence that our system is an open and fair one.” The defendant’s rights to be tried by a jury, subject to the scope of cases that can be tried by a jury, illustrate democracy in the light of citizens’ freedom of choice. Similarly, the concept of openness and fairness of the jury process is illustrated by the selection process and the roles of the jury. The selection process of the jury particularly ensures fairness through eliminated bias that is established by the random selection of the jury and the subsequent vetting process. The system is also fair because it offers every member of the society an opportunity to participate in the process and the accused has a right to choose a jury trial or a judge’s bench. Similarly, the power of attorneys to disqualify jurors in the vetting process ensures fairness by eliminating jurors who may have stake in the case to induce biasness. The checks and balances that are induced by shared roles between the jury and the judge in a jury trial justifies the fairness of a jury process. This is because the two parties checks on the roles of each other to eliminate biasness. While the jury limits the powers of the judge in determining the case, the judge ensures that jurors are properly selected to eliminate chances of bias. The above views are therefore completely justified within the concept of democracy, openness, and fairness of the jury process. Reference list Bergman, P. and Bergman, S. (2011). The Criminal Law Handbook: Know Your Rights, Survive the System. 12th Ed. California, CA: Nolo Blum, B. (2007). Contracts: Examples & Explanations. 4th Ed. New York, NY: Aspen Publishers Online Duxbury, N. (2008). The Nature and Authority of Precedent. New York, NY: Cambridge University Press Emanuel, S. (2007). Evidence. 6th Ed. New york: Aspen Publishers Online Fenwick, H. and Kerrigan, K. (2011). Civil Liberties and Human Rights. 5th Ed. New York, NY: Taylor & Francis Neubauer, D. and Fradella, H. (2010). America's Courts and the Criminal Justice System. 10th Ed. Belmont, CA: Cengage Learning O’Riordan, J. (2002). AS Law for AQA. North Yorkshire, UK: Heinemann Robertson, P. (2010). A Guide to Criminal Law. 2nd Ed. London, UK: Straightforward co Ltd Schubert, F. (2011). Introduction to Law and the Legal System. 10th Ed. Boston, MA: Cengage Learning Read More