Precedent in English Law: Stare Decisis - Essay Example

PRECEDENT IN ENGLISH LAW and Precedent in English Law; Stare Decisis Introduction In English Law, stare decisis entails a legal principle where judges are indebted to respect precedents, which are established by prior decisions. From Latin, stare decisis is mostly used in legal context to mean that courts must abide by precedent (Edlin, 2008, 23). In England and United Sates, the Common Law has originally adhered to previous precedents cases as law sources. Therefore, the Stare decisis principle tends to distinguish the common law from various civil-law systems. In fact, they give great importance to law codes and opinions of scholars in explaining them (Edlin, 2008, 34). In English Law, the stare decisis principle is sometimes not applied with strictness. In fact, some common-law courts always look for guidance from earlier cases. However, they could scrap those in which they considered poor law (Edlin, 2008, 34). On the other hand, courts also placed less reliance on previous court decisions since they lacked reliable written cases. The court’s policy and principles upon which the judicial authority rests as precedents in ensuing litigations remains embodied in the maxim (Milsom, 2003, 28). The principle means that in a point where the law has been settled necessarily by a competent court’s decisions, then it will not be considered open for any examination. Stare decisis generally influences the English common law nature and in this case, common law jurisprudence mostly prevails in England. Traditionally, most British Empire members mostly use the English common law (Hage & Akkermans, 2014, 29). The law derives its authority from received traditions and common judicial practices. The English common law is not automatically written or codified. However, like the English constitution, the law pre-exists reality, which magistrates and judges must always respect. On the other hand, civil law, which mostly stems from the Roman law, remains influential over most Latin America and Europe nations. In its modern form, common law remains codified (Hage & Akkermans, 2014, 32). However, more important to civil law is the fact that statues commonly bound magistrates and judges. In fact, they are only able to rule specifically on certain cases without following the general rules. Therefore, civil law jurisprudence and common law entails various judiciary roles that help in shaping the law content. With this in mind, the expertise will elaborate on the nature of the English common law. Additionally, the expertise will reflect on the stare decisis principles and how its role in influencing the English Common law nature. Nature of the English Common Law The common law remains an important scientific lab, results, and resources, which are brought to tolerate populations that are privileged to possess the tradition English Common Law. Examples of such populations include Australia, the United States, and Canada (Milsom, 2003, 53). In this case, nature remains an ultimate and great scientific testing lab since it always shakes out the truth. Since historically, the English Common Law remains a force to reckon (Hage & Akkermans, 2014, 41). The greatness of England is attributable to stabilizing and enriching institution, which England citizens currently known as the common law. In this case, the common law is seen as wonderful and the great subject. In fact, its benefits and evolutionary development make it be a superior law system across the globe (Hage & Akkermans, 2014, 43). The common law jurisprudence tends to prevail mostly in England. However, specific British Empire members tend to use the English common law. The nature of the law descends from its authority. Here, authority was received from judicial practices and various traditions hence demonstrating its nature. Additionally, it is evident that the English common law results from a natural sequence that first became a custom before becoming a law (Hage & Akkermans, 2014, 41). Traditionally, the common law did not result from acts of will or group acts from instant moments. Instead, the law resulted from continuous developments through processes that remain difficult to establish or understand (Milsom, 2003, 53). In fact, the English common law evolved along with man. The primeval man knew nothing regarding laws. Instead, they were familiar with the custom. Tradition or custom evolved into living rules. They later on grew spontaneously and not deliberately designed by the specific human mind. While it is difficult to establish the origins of human traditional moral rules, the human society function is always clear (Milsom, 2003, 53). Most of these traditions and rules are important in preserving the existing state of affairs that include human culture and how it evolved, civilization and how culture turned out. The conservation of human existing laws to early man was of great concern especially when putting up with unfavorable laws. Traditionally, men tended to fear change (Hage & Akkermans, 2014, 41). This means that change and its social turmoil brought about suffering and death. Ways in Which Stare Decisis Influenced the English Common Law Nature In modern jurisprudence, stare decisis play a significant role in influencing the English Common Law nature. Traditionally, the stare decisis doctrine helps in giving great importance to opinions in a given case. In most cases, it treats some these opinions as if they were laws despite the fact that only the findings and the order have actual law force (Hage & Akkermans, 2014, 43). This, therefore, means that, the poorly worded judgment can define various legal positions, which exceed the underlying constitutional enactments bounds before becoming the source for future precedents. In most cases, the problem is aggravated by judge’s failure to delineate boundaries between dictum and edict (Oldham, 2004, 68). Another common stare decisis influence is that, it tends to discredit legal arguments. In most cases, this happens on wrongly decided precedents especially when the precedents established are at higher levels in petitions hierarchy. Additionally, it is used in demanding the litigants. In this case, it distinguishes some of their cases from adversative precedents (Hage & Akkermans, 2014, 87). It argues that the said precedents are not applicable to the present case due to elements, which makes it differ from other precedents cases. However, court rules can make the situation more difficult. The significance of a stringent but rational devotion to the stare decisis doctrines is remarkably exemplified in the development of English constitutional jurisprudence. The precedent principle remains eminently philosophical (Oldham, 2004, 70). This, therefore, means that the stare decisis play a significant role in influencing the English Common Law nature. Alternatively, the stare decisis principals have played a significant role in English constitution development. In this case, the English constitution entails the British polity fundamentals that were laid down in precedent, custom, statues and decisions (Reinsch, 2004, 74). Therefore, the common law remains a far greater portion compared to the statue law. On the other hand, the English constitution remains primarily a common-law constitution. This means that it reflexes on a continuous law within a continuous society. Alternatively, it means that the common law serves an important role in the constitution. In England and United Sates, maintenance of the stare decisis doctrine is of great significance especially on deference account, which are mainly accustomed in paying to the law courts decisions (Reinsch, 2004, 89). This acknowledgement of judicial tribunal’s province and power in the settlement and guidance of civil institutions in most cases leads English and American citizens into yielding implicit obedience. Traditionally, stare decisis operates effectively when the judiciary makes decisions from the deck thus on a moving vessel instead of decisions made from the floor of the courthouse (Reinsch, 2004, 74). Despite trappings of marble, robes, clerks, bailiffs and other power accouterments, in its relationship with other societal authority sources, the judiciary’s position remains an independent one. This inconsistency is mostly developed by fundamental legal order edicts (Bobb-Semple, 2012, 75). While people may engage in unending law debates regarding the force of traditionalism, which are mostly, embodied in the stare decisis principle, in most cases, the doctrine constitute chain and ball to the law development (Bobb-Semple, 2012, 80). The historical stare decisis remains significant since it has enabled the judiciary of the common law to annex a comprehensive range of political, economic and social power to itself. Retracing the stare decisis concept through the philosophical, labyrinth of political and anthropological mechanisms remains important in the formation of the English Law (Reinsch, 2004, 87). On the other hand, the stare decisis play a significant role in guiding and individualizing justice. Conclusion In any legal order administration either Papal or civil, judges are always required to perform functions that are different from those that the executives or legislators perform. In most cases, judges tend to apply the law to personal circumstances (Hage & Akkermans, 2014, 98). Just like any other law, the England common law is almost similar. The only difference is that the Stare decisis govern it. From the expertise, it is evident that stare decisis plays a significant role in influencing the English Common Law nature. In this case, the stare decisis principals have played a significant role in English constitution development (Oldham, 2004, 70). The common law is a significant scientific lab, results and resources, which are brought to tolerate populations that are privileged to possess the tradition English Common Law. The historical stare decisis remainS significant since it has enabled the judiciary of the common law to annex a comprehensive range of political, economic and social power to itself. On the other hand, the stare decisis plays a significant role in guiding and individualizing justice (Milsom, 2003, 96). Through Stare decisis, civil law jurisprudence and common law perform various judiciary roles that help in shaping the law content. This, therefore, means that the stare decisis principle distinguishes the common law from various civil-law systems. Stare decisis also tends to discredit legal arguments. By discrediting the legal judgments, stare decisis serves an important role in shaping the English common law. Bibliography Bobb-Semple, C. 2012. Race, jail v bail. [S.l.], Colin Bobb-Semple. Edlin, D. E. 2008. Judges and unjust laws: common law constitutionalism and the foundations of judicial review. Ann Arbor, University of Michigan Press. Hage, J. C., & Akkermans, B. 2014. Introduction to law. http://dx.doi.org/10.1007/978-3-319-06910-4. Milsom, S. F. C. 2003. A natural history of the common law. New York, Columbia University Press. http://site.ebrary.com/id/10183514. Oldham, J. 2004. English Common Law in the Age of Mansfield. Chapel Hill, University of North Carolina Press. http://public.eblib.com/choice/publicfullrecord.aspx?p=413380. Plucknett, T. F. T. 2001. A concise history of the common law. Lawbook Exchange, Union, N.J. Reinsch, P. S. 2004. English common law in the early American colonies. Lawbook Exchange, Clark, N.J. Read More