...NATIONAL UNIVERSITY «ODESSA LAW ACADEMY» Department of International Law and International Relations TERM PAPER In Legal Philosophy on topic: «Judicial Precedent» By the 1st year student of the 1st group Of the Faculty of International Legal Relations Supervisor: Prof. National scale ___________ Number of points ______ Assessment ECTS _______ Commission members: ___________ _______________________ ___________ _______________________ ___________ _______________________ ODESSA 2014 THEME: Judicial Precedent PLAN INTRODUCTION …………………………………..…………………………… 3CHAPTER 1. Judicial Precedent: generals 1.1. Definition of judicial precedent ………………………………….…... 51.2. The doctrine of stare decisis ……..………………………….……..… 61.3. Ratio decidendi and Obiter dictum …..………………………….....… 7CHAPTER 2. Types of precedent2.1. Verticality ……………………………………………………………. 102.2. Horizontality ………………………………………………………… 112.3. Binding precedent …………………………………………….……... 122.4. Persuasive precedent ………………………………………………… 15 CHAPTER 3. Avoiding precedent 3.1. Distinguishing …………………..……………………………………. 19 3.2. Overruling ……………………………………………………………. 19 3.3. Reversing ……………………………………………………………... 20 3.4. Per incuriam…………………………………………………………… 20 CONCLUSION …………………………………………………………………... 22LITERATURE …………………………………………………………………... 25 | INTRODUCTION At the present stage of development of Ukraine in the framework of the democratic process, there are the emergence...
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...Certainty in the law is a concept for which the Administration of Justice strives. Judicial precedent promotes certainty in case law while Statutory Interpretation promotes certainty in legislation. Discuss these statements with reference to the principles and rules of Judicial Precedent and Statutory Interpretation. Illustrate your answer by reference to cases. Individuals have different perceptions, and businesses operate in a market-based system, where production is fuelled by profit maximization. Conflict will inevitably arise. Law helps societies maintain social order, which enables individuals to interact, and provides a framework within which businesses operate (Kelly, Holmes and Hayward). The law impacts different aspects of our lives. There are rules to govern property, health, and a range of human activities. Vernon Rich describes laws as “written expressions of the enactment or decree of legitimate governmental authority, which formally define standards of behaviour and provide for punishment by the government for those who disobey” (63). Since the consequences of disobeying laws can be severe, judges and legislators strive for certainty in case law and legislation, to ensure the most just ruling. Although critics argue that judicial precedent and statutory interpretation have limitations, they undoubtedly promote certainty in case law and legislation. Case law, or common law, is law enacted by judges based on decisions made in the cases they...
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...Precedent and the Court Structure The law in the UK is made up of primarily two sources: statute and precedent. Although judges are required to apply statute - interpretation of statute follows common law principles including precedents. Precedents are a concept in common law (England and Wales and other English speaking countries – US, Canada (except Quebec), Gibralter, Hong Kong etc) whereby a previous case if similar (in facts) is used to provide a consistent basis for decisions. Precedents are "binding" on a lower court that is to say they must be followed by a lower court if the decision was made by a higher court. They should also be followed by that court itself. The Latin term Stare Decisis (to maintain what has already been decided) is used to define this. When a judgement is handed down by a judge it is in two parts 1. the ratio decidendi (the reason why) and 2. the orbita dictum (said by the way). The ratio decidendi is binding. The orbita dictum can be cited as persuasive but is not binding. Similarly a lower courts decision can be persuasive to a higher court but is not binding. The general concepts of the above are referred to as "case law" and help to develop and modify the law. Subsequently a great part of the work of a lawyer in a trial is to show how the facts of the particular case differ or resemble other cases to make their points of law in front of the court. In civil law precedent is not followed in the same way and judges theoretically use...
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...Mahesh Nanwani explains the doctrine of precedent and looks at the methods by which judges can make and amend the law. The doctrine of judicial precedent has been at the heart of the English legal system, being a fashion fiesta for the judges to follow long-standing precedents which, in fact, only slowly evolved and matured from the nineteenth century.[1] Fundamentally, it refers to the hierarchical structure of the English courts within which a decision of a higher court will be binding on a court lower in the hierarchy. The decision contains two types of statements: first, there are ‘ratio decidendi’ statements which are binding and are statements of law applied, and second, there ‘obiter dictum’ statements which are statements made ‘by the way’. Nevertheless, some judges have been criticised for making law via the doctrine of precedent. Subsequently, the question of judges being unconstitutional arises. However, as we shall see, sometimes judges sitting in the House of Lords (the Supreme Court), Privy Council, Court of Appeal and two separate European Courts do indeed make law and state the law. The Supreme Court, formerly the House of Lords, is the highest court in the United Kingdom and is bound by the European Court of Justice for European Union law matters and also by the European Court of Human Rights for issues related to human rights. The House of Lords was also bound by its own decisions as per London Tramways v London County Council [1898] AC 375 [2] until Lord Gardiner...
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...Discuss the advantages and disadvantages of the doctrine of precedent. Judicial precedent concerns itself with the influence and value of past decisions of case law and prior legal experience. The doctrine of precedent means that judges refer back to previous decisions to help them decide similar cases where the law and facts are alike. A fundamental principle upon which the doctrine of judicial precedent rests, is that a hierarchy of courts is needed if it is to operate. The concept of stare decisis, meaning to stand by what has been decided, forms the basis of the doctrine of judicial precedent. The notion is that like cases should be treated alike for the sake of certainty and consistency which, it is argued, leads to fairness. The effect of this is that, ordinarily, the legal reasoning on a point of law made in an earlier case must be followed. If all courts, regardless of their status or seniority, were able to set precedent, the doctrine of judicial precedent would be a nonsense as it would be practically impossible to determine which precedent took precedence! The doctrine of judicial precedent has overcome this by the requirement that all courts are strictly bound to follow decisions made by the courts above them in the hierarchy. In addition appellate courts are normally bound by their own past decisions. However, there are advantages and disadvantages. Any discussion of the advantages is likely to include the point that the doctrine provides certainty...
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...Paper No. 09-008 Reconciling Originalism and Precedent John O. McGinnis Northwestern University – School of Law Michael B. Rappaport University of San Diego – School of Law Northwestern University Law Review, Vol. 103, No. 2, 2009 Copyright 2009 by Northwestern University School of Law Northwestern University Law Review Printed in U.S.A. Vol. 103, No. 2 RECONCILING ORIGINALISM AND PRECEDENT John O. McGinnis∗ & Michael B. Rappaport** INTRODUCTION ....................................................................................................................... 1 I. PRECEDENT, ORIGINALISM, AND THE CONSTITUTION ................................................... 4 A. B. C. II. A. B. C. D. E. F. The Supposed Conflict Between Originalism and Precedent ............................ 5 A Short History of Precedent ............................................................................... 7 The Consistency of Originalism and Precedent ............................................... 21 The Supermajoritarian Theory of Constitutional Originalism........................ 28 The Relative Benefits of Original Meaning and Precedent ............................. 29 Precedent Rules .................................................................................................. 34 Factors Relevant to Beneficial Precedent Rules .............................................. 41 The Contrast with Other Approaches to Precedent ......................................... 44 Applying...
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...INTRODUCTION Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. A judicial precedent contains in itself a principle of law. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries . the common law of England has been built up the decisions of England judges. There are so many reasons why precedents operates as an authoritative source of law and it also has many kinds according to its probative force. decisions than to the views of text writers. A judicial precedent speaks with authority. It is an evidence of law and source of it. The authority of precedents is great because of power, skill and professional reputation of judges who make them. Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisis, which is Latin for "let the decision stand" i.e. to stand by the decided. In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. Judge made law via the cases upon which they decide is one of the oldest sources of law. This provides in the law consistency and predictability. Judicial precedent means a judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for the...
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...2012 Assessment Report 2012 Legal Studies GA 3: Written examination GENERAL COMMENTS The 2012 Legal Studies examination was challenging for many students. Many common misunderstandings about various aspects of the legal system were evident in responses to the examination. Few students were able to demonstrate knowledge of a directions hearing. Incorrect cases were used as examples of the High Court protecting rights. In Question 3a. few students correctly identified that the Court of Appeal was higher than the Supreme Court (Trial Division) in the court hierarchy. Many students had a limited understanding of the operation of section 109 of the Constitution and struggled to provide a thorough response to Question 3b. Students should become familiar with the study design throughout the year. Students are expected to demonstrate the ability to discuss, explain and evaluate. Students’ ability to evaluate requires more attention. Students should not rely on rote-learned or pre-prepared answers as they will rarely address the question. Time management was an issue in this examination, with many students writing lengthy responses to questions that only required a shorter response, therefore not allowing enough time for longer questions. A shorter question that asks for an outline (for example, Question 1a.) requires no more than one or two sentences in response. Good examination technique is essential and students should practise their technique throughout the year. If students continue...
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...Question 4 At this point, it is easy to see that the board was not sufficiently representative of the stakeholders to meaningfully present and understand the important issues facing the company. Moreover, there was no one with sufficient technical expertise to appreciate the significance of the health issues or the biological impact on the environment. The lawyer may have felt a conflict of interest, in that he was both a director and a paid counsel. In any event, his view was limited to current and past legal precedent, not to the future, or to non-legal perspectives. This is functional fixation which can mislead a corporation into short-range thinking. The result of this analysis should be the realization that to properly govern a company, the board should have effective representation from all important stakeholder groups, and/or effective access to and information from representative groups or ethics experts. This analysis will highlight the value in appointing "outside" directors (who don't rely on the organization for their livelihood) and also women directors to insure that all aspects of an issue will be understood and argued effectively. Question 5 Jack might blow the whistle if he thinks that the wrong decision is made or if the process is suppressed or if too much delay is involved. This would (did) involve regulatory sanction including fines, shut down, loss of market, loss of profit, and ultimately loss of control to creditors. If Jack doesn't blow the...
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...Spend Analysis Daniel Wheeler BUS 307 Operations Management & Quantitative Techniques Prof. Aaron Hensley January 26, 2014 Spend Analysis Because of today’s enormously competitive industry surroundings, spend analysis has turned out to be an essential strategic device. There are now a lot of foundations which use the spend analysis procedure; it becomes very important for the remaining associations to embrace this procedure in order to continue being competitive and contend in today’s worldwide markets. It is financially vital for associations to settle on educated spending decisions. Spend analysis furnishes this avenue by distinguishing opportunities to combine spending in order to arrange greater contracts, confirm and lessen maverick spending, and lastly enhance acquisition operations and dealer performance. Most of these conglomerations join programming applications into this procedure; however programming alone will not complete the task. In this paper, I will show the analytical information skills which are essential to accurate and proficient spend analysis, explain how consolidating an organized methods, for example Six Sigma technique can result to team effectiveness, and demonstrate how incorporating other key capacities can make a synergistic, effective spend analysis group. Data analysis needs excellent analytical abilities and detailed guidance in order to create precise decisions with regards to spend analysis. There are a lot of conglomerations...
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...CONTENT (50 points) | |Excellent: 9-10 |Satisfactory: 7-8 |Weak: 0-6 |Grade | |Thesis |Clearly stated and |Clearly stated but lacking |Thesis unclear or missing | | | |appropriately focused |sharp focus | | | | | | | | | |Analysis |Clearly relates evidence to |Evidence related to main points|Evidence not explained or | | | |points; addresses audience |with some clarity; addresses |connected to larger argument; | | | |concerns; effectively reaches |most audience concerns; reaches|fails to consider audience; | | | |purpose |purpose |purpose unclear | | |Attribution |Attribution with author’s last |Attribution with author’s last |Difficult to distinguish | | | |name for all borrowed ideas |name distinguishes student’s |student’s ideas from source’s | | | |adds clarity...
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... Judicial Precedent Coursework In Elements of English Law Student registration No: 101019 Introduction This is a precedent from an earlier case, which must be followed even if the judge in the later case does not agree with the legal reasoning. A binding precedent is only created when the facts of the second case are sufficiently similar to the original case and the decisions was made by a court which is senior too, or in some cases the same level as, the court hearing the later case. Precedent that must be applied or followed is known as blinding precedent (alternately metaphorically precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears. In state and federal courts in the United States of America, jurisdiction is often divided geographically among local trial courts, several of which fall under the territory of a regional appeals court. All appellate courts fall under a highest court (sometimes but not always called a "supreme court"). There are 3 principles: • Ratio decidendi • System of law reporting • Court hierarchy Ratio decidendi: The Role of Ratio Decidendi in Judicial Precedent Ratio decidendi plays a very important role in judicial precedent as it is the...
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...Do Judges Make Law? A law is an obligatory rule of conduct imposed and enforced by the sovereign. Therefore the law is the body of principles recognized and enforced by the state in the application of justice. The law is mainly made by a parliament, a legislative body given power by the constitution to draft law. However in the last few decades there has been a notion that judges make law. A judge is a public official appointed or elected to hear and decide legal matters in court, Judges exercise judicial power. This involves making binding decisions affecting the rights and duties of citizens and institutions. In carrying out this task, a judge can use any of the following three sources of Ugandan law, Acts of Parliament or legislation, the common law, or previous decisions by the courts and a constitution Do judges make law? To ask the question “do judges make law?” Implies that perhaps to some extent they do make law. A great deal of controversy has centered on this question as to how far judges can legitimately make law although a great number such as lord Bentham have referred to it as a “childish fiction” thus judges cannot make law. Many other scholars more so those that are followers of the realist school of thought have placed absolute emphasis on the discretion of judges and relegated the "rules" to an obscure position. It can however not be denied looking closely at the present legal system that judges have played a dominant role in moulding the doctrines of the...
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...Critically analyse the strengths and weaknesses of precedent and statutory interpretation in the UK’s legal systems The doctrine of precedent arises (stare decisis) from the common law implementation in UK courts. This goes back to King’s Henri II (the King’s Bench) whereby past decisions were dispensed throughout the kingdom. The reasons and main advantages of the same are to ensure consistency/uniformity and predictability, thus creating confidence in the legal system. The stare decisis (stand by what is decided) enacts the requirement on the courts to follow/abide by the previous rationes decidendi of previous cases. Mainly, the lower courts will abide by precedent decisions due to the hierarchy invested therein (Binding precedent). In 1966, the House of Lords (now known as UK Supreme Court) referred to the doctrine of precedent as “…an indispensable foundation upon which to decide the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for the orderly development of legal rules”. However, the House of Lords advised that: “…that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears...
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...Chapter Title: 3 The Theory of Stare Decisis Book Title: The Sources of Hong Kong Law Book Author(s): Peter Wesley-Smith Published by: Hong Kong University Press, (October 1994) Stable URL: http://www.jstor.org/stable/j.ctt2jc134 . Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. . Hong Kong University Press is collaborating with JSTOR to digitize, preserve and extend access to The Sources of Hong Kong Law. http://www.jstor.org This content downloaded from 143.89.105.150 on Sat, 6 Dec 2014 22:30:49 PM All use subject to JSTOR Terms and Conditions The Theory of Stare Decisis GENERAL THEORY Introduction The essential idea behind stare decisis is that a judge is required - thus has no discretion to refuse - to follow certain previous decisions. This obligation arises when a prior case A yields a proposition of law in circumstances which are indistinguishable from those confronting the judge in case B, and by a formal rule the judge in case B stands in an inferior relationship to the court which decided case A....
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