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Constitutional and Administrative Law - Assignment Example

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This paper "Constitutional and Administrative Law" discusses the use of precedent in English law that comes from the Latin maxim ‘Stare Decisis et Non-Queita Movere’, which literally translates as ‘to stand by what has been decided, and not disturb what is still’…
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Constitutional and Administrative Law
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Download file to see previous pages When examining the decision of previous court comments that are made obiter dicta will not be part of the precedent since often obiter dicta comments are speculative remarks on how the judge might have acted if the facts had been different.

Binding precedents come from earlier case law and, as suggested in the wording, must be followed even if the judge in the present case does not agree with the legal reasoning of the judge in the earlier case. In order for a precedent to be binding the facts of the present case to have to be sufficiently similar to the earlier case. Decisions given in a lower court to the one in which the present case is being heard will not be binding. For a decision to set a precedent it must have been heard in a more senior court or, in some cases, the same level court like the one in which the present case is being heard. Cross (1977) made the point that ‘Lower courts must follow the decisions of courts above them.’ Canker (1994) agreed with Cross stating that ‘A court must follow the precedents established by the court(s) directly above it’. Within the UK decisions given within the House of Lords will be binding on cases heard in the Court of Appeal unless the judge can distinguish the present case from the earlier decision. The UK legal system appears to operate under ‘vertical bindingness’, whereby lower courts are ‘bound’ by decisions of courts above their level (Pattaro, 2005).

Although, in general terms, stare decisis operates in a vertical method there are several instances were binding precedents have been adopted from courts on the same level, thereby demonstrating that stare decisis can be horizontal as well as vertical in operation. This was demonstrated in the case of London Street Tramways v London County Council [1894]1 in which the House of Lords stated that it would always be bound by its own decisions. However, following the Practice Statement issued by the House of Lords in 1966[1] the House stated that it would be willing to ‘depart from a previous decision when it appears right to do so’.     ...Download file to see next pagesRead More
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