Doctrine of Judicial Precedent

Doctrine of Judicial actorThe outcome the Doctrine of Judicial Precedent Allows for Judicial practice of law Making,In a legal parlance, legal common rectitude is referred to as the tradition of judges who atomic number 18 adjoin to follow the closes laid down in old parts which video display similarity of facts. Arguably, stargon decisis forms the basic tenet of judicial condition. Ideally, the principle would average that in practice the finales rendered by the superior courts are sibyllic to hold up the lower courts in subsequent cases. As a result, legal scholars exhaust argued that this legal tradition ensures that the law promotes fairness and consistency. A good practice of judicial precedent is elaborated in Donoghue v Stevenson1 where the mark of Lords cogitate that consumers were owed a duty of care by manufacturers. Subsequently, the decision laid down, bound the court in apply v Australian Knitting Mills2. For the record, as a source of law, judicial precedent offers judges a author headspring in future cases.On the first premise, it is important to blood that a binding precedent would occur only where the factual features of the forward case resemble the current one. This decision is whats known as the ration out Decidendi, and should not be confused with the Obiter Dicta, which is persuasive in nature only. Arguably, it is from this point of view that legal scholars have concluded that the ism is complex in practice and open to misinterpretation. In the UK court hierarchy, courts at the bottom are bound by judgments entered by the higher courts. At the summit, lies the European royal court of Justice (one should take notice that the UK has voted to leave the EU), second in favourable position is the House of Lords whose decision mandatorily bounds every court at a lower place it. A second tier appeal enables the HOL to redirect law when interpreted a wrong turning. This is found in The Court of Appeal which possesses devil divisions. Arguably, the rulings of the European Court of Justice and the House of Lords bind these 2 divisions. Also, the two divisions, are bound by their own decisions3, although there is flexibility with wish to how the criminal division handles cases involving persons liberty4. The High Court together with the Divisional Courts is supposed to follow the decisions rendered by the House of Lords. However, it is worth noting that the lower courts cannot overturn these rulings, often diminishing the role of judges when in disagreement5.Appreciative of the facts discussed above, between the socio-economic class 1898 and 1966, it was an already established tradition that the House of Lords should mandatorily follow their old decisions. As a result, this made the law to be very reconciled in their applications due to judgments rendered in capital of the United Kingdom Street Tramways v capital of the United Kingdom County Council6. Ideally, it was from this observation th at Lord Gardiner LC in 1966 delivered a Practice bid7, noting that the rigid regard to precedent may lead to injustice in a limited case and also unduly restrict the proper development of the law.8 Arguably, this belief by Lord Chancellor illustrates the doctrines limitations and lack of flexibility. A recent practice of this can be found in R v R9 whos decision only reiterated what we already know.However, be that as it may, the doctrine allows a minor(ip) opportunity for judicial lawmaking through the prism of distinguishing, overruling and reversing. The two techniques appeared to be endorsed by the statements of the Lord Chancellor where he opined that the House of Lords would be permitted to activate from a previous decision when it appears right to do so.10 This would mean that departing from previous decisions would lessen the inflexibleness of the principle and expand the scope of judicial precedent as a lawmaking tool.Distinguishing is used in situations where the j udge draws a distinction between the current case and a previous case which ordinarily he or she would be bound by, they would then prompt by showing that the facts differ and not suffice to bind them. As a result, the judge departs from being bound by the previous decision thus allowing a new law to be created. The differences in Balfour V Balfour11 and Merritt v Merritt12 were so pronounced. Although the two cases pertained a wife and a husband, in Balfour v Balfour it had the characteristic of a domestic arrangement implying that legal design did not exist. However, in Merrit v Merrit it was clear that the so-called agreement was created subsequently the two had separated, which meant that the agreement was binding legally. Keenly looking through this window, the doctrine allows minimally for judicial lawmaking. Another scenario is overruling, where the judge rules that the judgment rendered in a past case is erroneous. Through the Practice Statement, the House of Lords has th e leeway to tump over their decisions. For example, in Davis v Johnson13 and also in bombard v Hart14, the House of Lords opined that parliamentary Hansard could be consulted to decipher the meaning of particular words in a legislation however this is only when so called legislation is pierce with ambiguity or absurdity15. Finally, reversing is where the decisions by the lower courts are overturned by a higher court. For example, the High Court rulings or judgments can be overturned by the Court of Appeal.In conclusion, the doctrine of judicial precedent has been mostly referred to as a fetter16 in the English legal system. As demonstrated, it is this rigidity which has limited its scope to acting as a judicial lawmaking tool. Certainty in law is very critical. However, that being said, rigidity in judicial precedent negatively affects the development of the law. Looking at this perspective, one would agree with Lord Halsbury wisdom that there is more to the law than a mere proce ss of logical deduction.17Table of AuthoritiesBalfour v Balfour 1919 2 KB 571 (CA)Davis v Johnson 1978 AC 264 (HL)Donoghue v Stevenson 1932 AC 562 (HL)Grant v Australian Knitting Mills 1936 AC 85 (PC)London Street Tramways v London County Council 1898 AC 375 (HL)Merrit v Merrit 1970 1 WLR 1211 (CA)Pepper v Hart 1992 AC 593 (HL)R v R 1992 1 A.C. 599 (HL)Young v Bristol Aeroplane Co Ltd 1944 KB 718 (CA)BooksBarker D and Padfield C, Law (1st edn, Made Simple 2002)Denning A, The Discipline Of Law (1st edn, Butterworths 1979)Walsh-Atkins P, AS UK presidency Politics (1st edn, Philip Allan Updates 2010)Wilson S and Storey T, English Legal arrangement (2nd edn, Oxford University shrink 2016)JournalsMcCormick D, Can stare decisis be abolished? (1966) 11 Juridical retread 196Pickett C, Precedent in the Court of Appeal (1980) 43 Modern Law Review 1361 1932 AC 562 (HL).2 1936 AC 85 (PC).3 As seen in Young v Bristol Aeroplane Co Ltd 1944 KB 718 (CA) 719 (Lord Greene MR).4 Wilson SR and ot hers, English Legal System (2nd edn, Oxford University Press 2016) 1485 Patrick Walsh-Atkins, AS UK Government Politics (1st edn, Philip Allan Updates 2010).61898 AC 375 (HL).7 Practice Statement (Judicial Precedent) 1966 1 WLR 12348 Alfred Thompson Denning, The Discipline of Law (1st edn, Butterworths 1979).9 1991 1 AC 599 (HL).10 Neil MacCormick, Can stare decisis be abolished? (1966) 11 Juridical Review 196.11 1919 2 KB 571 (CA).12 1970 1 WLR 1211 (CA).13 1978 AC 264 (HL).14 1992 AC 593 (HL).15 ibid 617 (Lord Griffiths), 621 (Lord Brown Wilkinson).16 D. L. A Barker and Colin F Padfield, Law (1st edn, Made Simple 2002).17 McCormick (n 9).