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This is opposite to the European legal system as it is founded on legal examples and possibilities.
The substance of precedent is known as "common law" and it bonds future determinations. When parties are in disagreement in the future and if the nature of the conflict is similar then the common law court bases its decision with the help of Presidential decisions of applicable courts2.
The court is bound to follow the reasoning of a past similar disagreement in which the issue was resolved. This principle is called ‘stare decisis’. But if the present disagreement is different from all other previous cases then the judges have the right and responsibility to formulate new law which thus creates a precedent as in Marbury v. Madison, 5 U.S. 137 (1803); "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each". From then on, the new verdict became precedent, and is binding on future courts.
The English legal system is based on the common law and the precedents. The doctrine of precedent is defined as ‘The common law principle which binds a judge or a magistrate to follow previous similar decision of higher courts in the same hierarchy; also known as stare decisis’ (Vickery & Pendleton 2006), which implies the decision stands.
The doctrine of precedent derives from common law and law of equity, which is ‘English-made’ laws that aims to be fair and treat all equally, so that the decisions by the courts are predictable and consistent in resolving disputes. There are binding and persuasive precedents, of which binding precedents are known as ‘ratio decidendi’ when the final order or ‘res judicata’ by the
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Judicial precedent, stare decisis and similar doctrines tend towards a conservativism and inflexibility in the system. But the United Kingdom does have a substantial influence of judicial precedent in its system, particularly when it comes to the House of Lords.
It binds courts-within certain set limits-to prior decisions made by superior courts on similar cases. Two objects of legal order are achieved when precedent is adhered to. The concept of precedent constitutes greatly to the maintenance of stable laws or legal regimes1.
Doctrine of Precedent. Reliance on precedent decisions is an important aspect of any systematic and consistent decision procedure. Considering the experience of past decisions plays a crucial role in securing the needed consistency and stability in application of law.
When the British formed their colonies they adopted and made it obligatory the notion of terra nullius which meant that the land belonged to no one. This they did because there was no particular recognition of laws or rights to the land of those aboriginal people at that time.
It is likewise charged with the responsibility to determine as to whether or not there has been abuse of discretion on either parties in the proceedings. And as such the courts are tasked to play a major role in the structuring of the fundamental aspects of law and justice to ensure and safe guard the very foundation of democracy.
Local customary law was the most common form of law in England before the Norman Conquest in 1066. Local communities would congregate to form assemblies, also know as moots, where they would create laws based on common customary views shared among the community.
Recently, the meaning of this “separation” has been challenged, as the demarcation line has become obscure, and both the judiciary and the legislature have, in the course of the regular conduct of duties, found the necessity to transgress ever so slightly into the
actice, judges in lower courts need to observe the established precedents set by higher courts, and this establishes the hierarchy of decision-making. However, as the name suggests, ‘stare decis’ means “To abide or adhere to decided cases. It is a general maxim that when a
It has been contended by Duxbury that flexibility and stability are both necessary for the common law system (Waddams, 2009, p. 132). This requirement has been fulfilled by precedent.
The common law legal system is based on precedent, which makes it possible to bring
Obiter dictum constitutes issues said by the presiding judge. They do not form part of what another judge can follow in future. An example of obiter dicta could be the decision of the judge if the facts turn out as different from the previous case. In this context, the old facts cannot bind the new judge while reaching his conclusion.
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