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Legal system in Great Britain - Case Study Example

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It has been said that the foundations of the English Legal System are no more believable than 'Alice in Wonderland' because the entire English legal system is based upon a series of unconvincing myths. One such myth is that judges are bound by previous precedents, but in reality, the judges have no difficulty in ignoring these precedents whenever the precedents do not suit their will and they thus do not wish to follow them…
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Legal system in Great Britain
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Download file to see previous pages Precedent brings consistency to the English legal system, in that two cases with similar material facts will be treated in the same manner. No legal system can be perceived as fair unless everyone receives equal treatment. Predictability allows lawyers to advice their clients with some degree of certainty. Certainty is an important advantage from the existence of precedent. A judge may be prevented from making a mistake, which he or she might have made if there were not any guidance available. However, some may feel that treating two cases alike doesn't allow for much freedom and rigidity is formed, inhibiting the development of the law and therefore giving the impression that the law of precedent is strict and inflexible. A criticism against the law of precedent is the fact that it can actually lead to a degree of rigidity in the system. Nevertheless, a judge may avoid following a previous decision in various ways. A judge may be able to distinguish an earlier case from the present case on its facts and thus avoid following it. No two cases will ever be identical in every way. The cases of Jordan (1956) 40 Cr App R 152 and Smith (1959) 2 A11 ER 193illustrate a 'real life' example of distinguishing two separate cases from one another. They may seem at first to be alike in many ways, but when the facts are investigated fully, its becomes obvious that they are actually different. This indicates that separate precedents would need to be used. A judge could avoid using a precedent because he or she found the ratio too obscure or the previous decision was per incuriam i.e. by mistake and without all the facts. Reversing occurs where a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case. The House of Lords has since 1966 indicated that it is actually prepared not follow its previous decisions if they feel that injustice will occur or there will be unreasonable restriction of the development of the law. Its own previous decisions as well as those by the House of Lords will bind the Court of Appeal, but there are two main exceptions to this rule. The court will choose which decision to follow if there are two conflicting decisions and will not follow one of its own decisions if it is inconsistent with a decision of the House of Lords or the Privacy. Miliangos v George Frank (Textiles) Ltd (1975) 3 A11 ER 801.Where a judge can actually avoid using a precedent it can be seen that the law of precedent is not as strict and inflexible as the title and some peoples opinions may suggest. However some judges (particularly in the Lords) have been, at times (and to an extent still are - holding decisions to be wrong, but not refusing to overrule them) very strict in their adherence to stare decisis i.e. they do not care whether a decision is 'right' or 'wrong', just or unjust. This can be seen as a big disadvantage as it means to say that judges have too much power at times and a bad precedent can be ignored which would make the law strict and inflexible at times. Other advantages include; how it is applicable to all future cases and is immediately operational.
It is said that the legal system is "regulated" by constitutional conventions, whereas the truth is that those ...Download file to see next pagesRead More
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