System of Precedence in Judiciary Law - Essay Example

Research Plan Please write here the of the essay you plan to write: The system of precedent is both essential to the working of the English legal system and inextricably linked with the process of judicial interpretation: Discuss State three primary sources of law you plan to consult in the course of your research. 1. The Incorporated Council of law reporting for England and Wales. From this source I am able obtain law reports. 2. The University of Essex-English Law Guide. From this source I am able to obtain information on both precedents and statutes. 3. Law dictionary. Utilizing this source I am able to obtain operational definitions of the pertinent legal terminology. Now choose ONE of those sources. Explain how you went/will go about finding it. In searching for reputable primary sources, I utilized the Google search engine utilizing "sources of law", "precedents" and "UK" as search terms. In so doing I generated a list of possible sources. The Incorporated Council of law reporting for England and Wales proved to be one of the first sources to be revealed. I conducted further research on the Incorporated Council of law reporting for England and Wales only to find that it has been in existence since 1865 and prove to be an authority on both law and its accurate reporting. The fact that the Council operated as a charity served to further convince me of its dedication to accurate reporting and its commitment to do with no consideration for financial gain. State three secondary sources of law you plan to consult in the course of your research. 1. "Learning Legal Rules: A Student's Guide to Legal Method and Reasoning" sixth edition by James Holland and Julian Webb and published by Oxford university press. 2. Cases 3. Lecture Notes Now choose one of those sources. Explain how you went/will go about finding it. Since I am new to the study of law, I searched for introductory legal books. The book entitled "Learning Legal Rules: A Student's Guide to Legal Method and Reasoning" is one that comes highly recommended and is an excellent source of basic information on which I can build a strong foundation for my continued study of law. Additionally, it is the book that I utilize for my seminars. State two electronic sources of law you plan to consult in the course of your research. WebCT is NOT an electronic source of law. 1. Leeds University-UK Law Online 2. The Law Commission Reforming the Law Website From the information above, and/or from other sources, compile a preliminary bibliography for your essay. (You can add to this later, but for now your list should be in alphabetical order, and contain at least four items). Duhaime's online legal dictionary-P 2004. Retrieved January 2, 2007, from http://www.duhaime.org/dictionary/dict-p.aspx Holland, J & Webb, J 2004, Learning Legal Rules: A Student's Guide to Legal Method and Reasoning, 6th edition, Oxford University Press, Oxford, UK. Leeds University 1998, The sources of the legal system, Retrieved January 2, 2007, from http://www.leeds.ac.uk/law/hamlyn/sls.htm The Law Commission 2001, Double jeopardy and prosecution appeals, Retrieved January 2, 2007, from http://www.lawcom.gov.uk/docs/lc267.pdf Give two examples of how you cited/will cite one of the sources you have referred to above (either as a footnote or an endnote). 1. The legal definition of precedent will be utilized as a footnote as follows: Retrieved January 2, 2007, from http://www.duhaime.org/dictionary/dict-p.aspx 2. The sources of Law will be examined utilizing the information present on the information on precedence located at the Leeds University-UK Law Online website. The footnote for that reference will be as follows: Retrieved January 2, 2007, from http://www.leeds.ac.uk/law/hamlyn/legalsys.htm In the space below, produce a preliminary plan for your essay. (You might consider using some or all of the following headings. The headings should not be used in your final essay - they are to help you plan only). You could also use a mind map. - Introduction-Definition of precedence and how it is utilized in the interpretation of the pertinent laws - Body/Main Part-Discussion of precedence and citation of specific cases where precedence was used to establish new laws. - Main arguments-Precedence is used in all areas of law. It ensures consistency in the laws of different jurisdictions and also shows reasonable development in law. It presumes equal treatment of all under the law and once precedence has been set it is used as a means of simplifying the judicial process while maintaining equality under the law. Essentially, it prevents a reinvention of the wheel. - Supporting arguments-Precedence in both Civil and Common Law - Conclusion-Precedence is an essential part of the judicial system. It serves as a means of expediting cases, ensuring consistency in the law and as a tool for the interpretation of the law. A precedent as utilized in legal lexicon is a case which creates a set of legal guidelines based on a specific set of facts. The set of facts are examined in a court of law and a conclusion is drawn based on the set of facts. When the set of facts examined are unique and have not previously been examined in a court of law, a precedent is set. When a precedent is set, any other case from that point on with similar or identical facts which are brought before the court are ruled on based on the ruling applied to initial case. Precedents form the basis of the theory of stare decisis. The term Stare decisis translates to 'Let the decision stand' and it is the judicial rule that dictates that as long as a precedent is binding, it must be followed. Essentially, it speeds up justice by preventing lawyers and judges from "reinventing the wheel" while allowing citizens to expect consistency in legal solutions1. For a precedent to be utilized, it has to be binding. Holland & Webb (2004) defines binding precedence as the legal entity which dictates that when a decision is made in a higher court it sets the legal standards for similar cases in courts of equal or lower status within the same jurisdiction2. Another component of stare decisis is the notion that a court should not overturn a precedent unless there is a reason to do so. The reason for overturning a precedent must be a matter pertaining to the law rather than the truth value of the decision.3 One of the most fundamental qualities of binding precedent is the fact that it is an integral part of the English legal system. It is utilized as the basis on which interpretations of the laws are made by judges. Under this system the judges may follow three main rules when interpreting the laws. These rules include the literal rule, the golden rule and the mischief rule. Under the literal rule, judges are called upon to do exactly what the precedent dictates rather than interpreting the law. In so doing, the judges should utilize the everyday meaning of the words in the precedents even though a literal interpretation of the precedent may result in an unfair or objectionable conclusion.4 When the use of the literal rule results in a judgment that is illogical, the golden rule is applied. The golden rule is applied as a means of clarifying a precedent. In so doing, it may either narrow or widen the meaning of the precedent. In cases where there are ambiguous meanings when the precedent is interpreted, the meaning is narrowed by using the least absurd meaning. In cases where only one meaning can be applied to a precedent to ensure that its meaning is not absurd, the golden rule is applied in a manner that widens the meaning.5 Finally, in cases where the literal and golden rules prove to be useless in interpreting a precedent, the mischief rule is applied. This rule enables a judge to enforce what the precedent is meant to remedy rather than what the precedent says when interpreted literally or clarified by the application of the golden rule6. After having discussed the origin and utility of precedents within the English judicial system, it is prudent that we examine whether this system is essential as well as whether an inextricable link exists between system of precedents and judicial interpretation. Holland & Webb (2004) points out that the notion of precedence is utilized in both Common and Civil law. In Common law, precedence is utilized as the primary guiding force in determining the course of action to be taken by the courts. Precedence may be utilized by themselves as free standing entities or they may be combined in order to rule on a specific set of circumstances. In Civil law, however, precedence is only a fraction of the legal principles utilized in determining the laws governing a specific set of circumstances. It is used in conjunction with the statutes and customary practices of the Parliament.7 One of the most prolific tests of the system of precedence can be seen in the notion that historically consent to have sex within a marriage was not necessary. It was presumed that one of the marital duties of a woman was to have sex with her husband. If she did not wish to have sex with her husband, it was perfectly legal for him to rape her. This notion was called to task in countless incidents until this long-standing legal concept was overturned in 1991 in the case of R v R [1991] 3 WLR 767. In this case, historical and social concerns were utilized in order to impact a change in public policy which dates back to a precedent set by Sir Matthew Hale, in 1736. 8 As we have seen, precedence has severed as the guiding force in Common Law and as an integral component of Civil Law. It has been utilized as a means of expediting the judicial system and holds the potential of change even after centuries of its application. One of the most significant criticisms is the fact that precedence can be outdated and its virtue can be questioned when used by the judicial system. Many opponents of its utility argue that precedence serves to the detriment of a dynamic legal system in that the outcomes of many cases are predictable. Another criticism of the system of precedence is the notion that it is inherently undemocratic. This claim is substantiated by the fact that the system of precedence allows an unelected judge to make the decision in a case based on the same or similar set of facts in a previously decided case. This argument is a good one, however, it is prudent to make light of the fact that if a legislative body views a precedent as problematic, they are free to change the law by instituting a statute. This is true for all cases except for cases involving the interpretation of the Constitution. Finally, we have seen that the system of precedence is one that has been utilized throughout the course of history. It proves to be an effective and efficient method of rendering justice in an equitable and consistent manner. It has been utilized as a means of interpreting the laws by examining previous cases with similar facts. An examination of the precedents with regards to a particular case is the only step undertaken in Common Law and is the first step in the interpretation of Civil Law cases. By virtue of this, it is and will remain an inextricable component of judicial interpretation-one that has withstood the test of time. References Civil Law see Holland, J & Webb, J 2004, Learning Legal Rules: A Student's Guide to Legal Method and Reasoning, 6th edition, pp 155-156. Duhaime Law website Retrieved January 2, 2007, from http://www.duhaime.org/dictionary/dict-p.aspx Electronic Journal of Comparative Law 2006, Report to the XVIIth International Congress of Comparative Law, Retrieved January 2, 2007, from http://www.ejcl.org/103/art103-9.pdf English Legal System see The British Information Services 2004, The British government: The legal system, Retrieved January 2, 2007, from http://www.britannia.com/gov/gov8.html Holland, J & Webb, J 2004, Learning Legal Rules: A Student's Guide to Legal Method and Reasoning, 6th edition, Oxford University Press, Oxford, UK Leeds University 1998, The sources of the legal system, Retrieved January 2, 2007, from http://www.leeds.ac.uk/law/hamlyn/sls.htm R v R [1991] see Leeds University 1998, R v R-Legal citation: R v R [1991] 1 A.C. 599, House of Lords, Retrieved January 2, 2007, from http://www.leeds.ac.uk/law/hamlyn/rvr.htm Roberg, A 2003, Common Law &The Human Rights Act 1998, Retrieved January 2, 2007, from http://www.rettid.dk/artikler/2003.afh-1.pdf Read More