Doctrines Of Essential Legal Precdents Law Essay

The philosophy of case in point is indispensable to the English Legal System and provides strength both conceptually and procedurally. It exists, to give jurisprudence some much needed construction ; in bend case in point has developed and still continues to develop English jurisprudence. The philosophy of case in point gives consistence and certainty and is by and large considered to be the instrument of English jurisprudence, built upon bing illustrations provided by instances instead than through conjectural scenarios. By accurately explicating the significance of case in point and what its map is in within English jurisprudence, can the citation given by Ian McLeod so be genuinely validated and accessed.

The layperson ‘s reading on the construct of case in point, is the impression of what has been done earlier should be done once more. The philosophy applies as portion of ‘ratio decidendi ‘ which translated means the ground for the determination of a instance, or a proposition of jurisprudence. The philosophy of case in point relates to the value and significance of instance jurisprudence. It has already been established that the common jurisprudence system has, and still is, evolved through experience, through determinations in single instances. The rule that underpins the impression of case in point is wholly consistent, where a affair has arisen and been decided upon before it is prudent to look to that determination for counsel.

In order to supply illustrations and hence case in point to be genuinely utile, rules must be derived from them, they so can offer a greater grade of assurance and greater control in future Cases. An illustration may be made of Donoghue v. Stevenson [ 1932 ] All ER Rep 1 ; [ 1932 ] AC 562 whereby the construct of a ‘duty of attention ‘ was created, a construct that is important to the jurisprudence of carelessness. Practitioners and faculty members frequently speculate as to a legal rule that is developing, but it takes a

peculiar instance to decide the issue ( Holland and Webb, 1999 ) , to supply certainty. However, significantly this removes a grade of flexibleness from the system as it relies on instances being brought before an appropriate tribunal for the jurisprudence to progress, for case in point to develop. On the other manus, set uping legal rules from instances allows similar determinations to be reached on issues of jurisprudence even where the facts of a peculiar instance are non comparable ; this adds a grade of flexibleness.

In a legal context, case in point can be adhering on ulterior tribunals. It is non simply considered sound pattern to follow anterior determinations ; in some fortunes it is necessary. This is known as the rule of ‘stare decisis ‘ , translated to intend ‘let the determination base ‘ , in pattern this refers to where a determination is made that determination must be followed in tribunals of an equal or lower position. The determination in a legal context refers to the concluding behind a determination as opposed to the consequence itself. Theoretically this promotes legal certainty as it places a responsibility on lower tribunals to back up determinations made in higher tribunals in similar instances.

In simple footings, a justice who is in the center of seeking a instance will look back at instance history of comparable fortunes, if a case in point has been set, in a higher tribunal or one of tantamount standing, so the justice should maintain to the regulation of jurisprudence determined in the old instance. Where the case in point is established in a lower tribunal in the hierarchy, the justice in the new test may non follow but will surely see it. Precedent from finding of facts of higher tribunals, are adhering on all lower tribunals.

All other tribunals in the legal system are bound by determinations made by the House of Lords, apart from the House of Lords itself. The Court of Appeal is a wholly different

scenario, supplying far more issues when covering with the topic of case in point. By and large the CoA is bound to follow determinations of the HoL ; however there have been illustrations where this has non happened. Lord Denning led multiple onslaughts on the philosophy on case in point in this context, none of which can be considered successful. It has been Considered that a case in point may be ignored where the case in point was established ‘per incuriam ‘ , where a determination was made with important inadvertence. There is a differentiation between important inadvertences and doing an wrong determination, the former involves an arrant failure to take into consideration relevant authorization.

It is clear that the philosophy of case in point represents a system with defects that compromises both flexibleness and certainty in different countries. The balance achieved between the two overall may be deemed satisfactory to the extent that the jobs are no inherent in the case in point system but embedded in adversarial common jurisprudence. The chief issues arise from reading, the find of the existent ratio and the rules of jurisprudence instead than the mechanical operation of the ‘stare decisis ‘ . To this extent the philosophy of case in point really provides a modification model that prevents this gyrating out of control, taking all certainty. It has been illustrated that the operation of case in point is itself an unsure country of jurisprudence ; this provides the grade of flexibleness required for originative development.

The statement detailed by Ian McLeod, concerns the bindingness of case in point, was it apparent instead than real.A Precedent does hold adhering force so holding with the statement is hard. A higher tribunal ‘s determination must hold relevancy to the instance in the lower tribunal, besides be made by the higher tribunal on an indistinguishable issue doing it genuinely adhering. Several different theories as to what underwrites the necessity of adhering

case in point have been contemplated over the decennaries. The determination in one instance does non ask a determination in another. In a instance where there are more than one similar conflicting determinations, the lower tribunal may non hold to be bound, but could hold a pick between different case in points. A more believable observation about the bindingness of case in point is that, it is merely a affair of respect or regard, non of right or responsibility. It can find instances where a determination is taken, simply out of fear of instances of following that case in point. The highest tribunal in legal power is non bound to lodge to its ain case in points ; it may on the other manus ever abide by them out of regard for its old determinations, but in researching and measuring the philosophy of case in point, shows that the Law system is based on case in point, doing it rational and adaptable. This in bend gives it flexibleness in varied and altering fortunes.

Word Count: 1065

Bibliography

Kelly & A ; Holmes Business Law 4th erectile dysfunction. ( 2002 ) ( London: Cavendish )

Holland J. and Webb J. ( 1999 ) Learning Legal Rules ( Blackstone Press Ltd: London )

Harris J.W. ( 1990 ) “ Towards Principles of Overruling – When Should a Final Court of Appeal Second Guess? ” Oxford Journal of Legal Studies, vol. 10, p.135

Keenan, D. ( 2003 ) Smith & A ; Keenan ‘s Law for Business ( 12th ed. )

Waldron J. ( 1997 ) The Law ( Routledge: London )

“ The Menace That Was n’t ” ( 2004 ) The Economist, 13th-14th November

“ Precedent facts – Freebase. ” www.freebase.com N.p. , n.d. Web. 8 Mar. 2010 & lt ; hypertext transfer protocol: //www.freebase.com/view/en/precedent & gt ; .

Question 2

Terence Ingman ‘s statement featured in ‘The English Legal System ( 10th edition ‘ ) places great weight to the ordinary individual holding an active function in the jurisprudence system. The usage of juries in the tribunal system goes back much further than people think, back to the epoch of Henry 11. Previously the luckless accused would endure a test by ordeal, non the fairest manner of making a decision to an offense! The most popular signifier of this life or decease test would, more frequently than non affect H2O. The finding of fact would be reached, if you drowned of managed to last. If you survived evidently you were guiltless! When a Jury could non do a determination, they were frequently refused nutrient and H2O, so a finding of fact could depend on how hungry they were! Thank goodness, jurisprudence has come on springs and bounds since these barbarian methods ; The jury is now seen a important portion of the modern twenty-four hours justness system, in the undermentioned paragraphs, the function of the jury system and it ‘s keeping influence on the bench will be deliberated and considered.

The layperson ‘s perceptual experience of a jury ‘s usage in test process consists of a group of 12 members of the populace, stand foring a cross-section of society, chosen at random. Eligibility to go a juryman requires the individual to be between 18 -70 year old, be registered on the electoral registry after holding lived in the UK for at least 5 old ages. Not every member of society are suited to be a juryman, holding suffered from mental unwellness, or served a prison sentence of over 5 old ages and over, have a suspended sentence, or a community order within the last 10 old ages would dispatch you of this responsibility. Besides a member of the armed services medical profession, or being involved in jurisprudence would let go of you from service. This changed after Criminal Justice Act 2003, the jurisprudence changed and merely an application submitted to the ‘Jury cardinal citing ‘ would be the lone method of excusal.

Jurors are notified by agencies of a biddings that their civil responsibility is required ; disregarding this responsibility could go forth that individual with a mulct of up to ?1000 or even imprisonment! 15 Jurors are really invited to the tribunal ; from this group 12 will so be selected at random by a tribunal functionary and asked to curse an official curse. Jurors would usually be asked to function for a period of approx 10s working yearss, during this clip this may affect more than one instance. If a test takes longer than seven yearss, the jury would be expected to sit for the whole of the test. Juries are non used every bit frequently as most would believe, infact condemnable juries make merely 3 % of instances which really reach crown tribunal, and so merely a 3rd of these really require a jury test. Juries can be used in both condemnable and civil tests, in a civil test ; the test will take topographic point in the High or county tribunal. Civil juries are called at the discretion of the tribunal ( England & A ; Wales ) and used in instances such as Libel or slander, malicious prosecution and false imprisonment, but a jury could besides be required in a Coroners tribunal.

Jury determinations are seen as concluding ; in condemnable instances they can merely be appealed on a distinguishable point of jurisprudence. Civil instances are non the same ; they can be overturned on entreaty on the evidences that the determination was incorrect! Or if they had been falsely directed ensuing in the incorrect determination being made. The Criminal Justice Act 1967 first brought in the footing of a bulk finding of fact, which for the first clip non less than 11 jurymans agree of in a jury of 10 that 9 agree. This meant that in unfastened tribunal while reading the finding of fact, the interpreter of the jury must declare how many agreed and how many did non. A figure of instances as in R V Barry [ 1975 ] and R v Pigg [ 1983 ] the House Of Lords stated that there was a factual demand to declare the minority!

The function of the jury is to make up one’s mind affairs of fact but it is really a mixture of fact and jurisprudence, which is directed to a jury by the justice. Society ‘s position on a jury ‘s function is ‘Joe Public ‘ taking portion in the jurisprudence procedure to give a just and equal opinion to an accused, and to halt judicial maltreatment of the system. In hindsight this is a small short-sighted ; Judgess do hold the power to direct a jury and even to assoil a suspect on deficient grounds. By summing up in such a manner that the justice could take the jury to reason there is merely one manner the finding of fact should travel. Contrary to the popular belief juries can be manipulated. Jury choice may non be every bit random as people think.

The CJA [ 1988 ] instigated ‘peremptory challenge ‘ , which gave the defense mechanism the installation to object to up to 3 jurymans without saying a ground for the expostulation, giving the defense mechanism the power to determine a jury. The Prosecution and once more the defense mechanism besides have the power to ‘challenge for cause ‘ . To dispute a juryman, they must hold significant grounds as to why a juryman should non function on the jury, locating grounds why a juryman could act upon the finding of fact below the belt, one being old traffics with the suspect, but in hindsight this could be because of political or spiritual beliefs. Last the prosecution has the power of ‘stand by ‘ or ‘prosecution challenge ‘ , a juryman can be rejected because they are obviously unsuitable, i.e. nonreader in a complex instance. The Attorney General even has the power to blackball a juryman in for case a terrorist act instance on the evidences of being a security hazard. In instances like these jurymans can besides be background checked for suitableness due to extreme spiritual beliefs contrary to the random choice theory.

Does the jury system act as a keeping influence on the bench? It can non be justified entirely, the reply is non so clear cut. With the methods in topographic point to deselect members of a jury and a justice ‘s ability to be able to direct a jury to do a determination, they can be manipulated, so who would be keeping who? A jury gives society a function in the jurisprudence system, demoing that the ‘random ‘ choice of a suspects community will finally be the justice to their offenses alternatively of a justice or Judgess, what some of society deems as privileged place with no clasp on so normal mundane life and issues.

Word Count: 1099