english legal systems essay

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‘In an appellate court of last resort a balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions and on the other side the avoidance of undue restrictions on the proper development of the law.’
Davis v Johnson [1978] All ER 1132 (Lord Diplock.)
Assess the advantages and disadvantages of the doctrine of precedent.
There are two primary sources of law in England, acts of parliament and decisions of the judiciary. The doctrine of precedent originally known as the Latin term Stare Decisis, meaning ‘let the decision stand’ has gradually developed from case law decisions made by appellate judges. Judges would meet in London to compare facts and results from cases and merge their findings, making precedent easy to follow because of centralised English legal system. Original or declaratory precedent would be made by judges when there has been no past case to base their reasoning for their judgment and so therefore would have to set a new precedent for future cases. Once this precedent is set, a judge of future cases would have to follow as binding precedent. Case law then becomes the law making binding precedent and facts of future cases can be decided on past cases. Lower courts are legally bound to follow decisions made by higher courts or the courts of the same standing are required to follow the previous precedent they had set. The ratio decidendi meaning ‘reasoning for deciding’ is a term used to describe the reasoning to the outcome of a case. The obiter dictor meaning ‘things said by the way’ is the term used to describe all other parts of a case that are not the ratio decidendi.
The advantages to doctrine
To start by understanding the doctrine of precedent, there must be some understanding of the English court system and the levels of the courts. The Supreme court being the highest court, below this courts is the appeal courts from the criminal and civil divisions, then the High Court below this with other courts such as Crown court, County Court, Magistrates and at the bottom.
The doctrine of precedent has developed through case law made by higher court judges. Acts of parliament are created using what the majority of the population consider to be right from wrong. Statues can be interpreted in many ways and many different decisions could be reached by judges. Having a different decision for a very similar case is unjust. Statutes are not always clear and there is a number of ways in which it can be applied. If law was distributed solely from statutes of the legislature, the law can be made retrospectively making it unfair and unjust. The rule of law has given separation to the powers and it is the responsibility of the judiciary to interpret the law in a just way. This is known as the ginger hair rule test. If a law was that it was illegal to have ginger hair, a judge can decide that the defendant has copper coloured hair and so would not be a victim of a retrospective law.
Judges interpret statutes made by the legislature and sets what the law is. This creates greater certainty in the law and doesn’t cause confusion, providing consistency and convenience, highlighted in London Street Tramways v London County Council [1898].1 The law then is more predictable and easy for everyone to understand. This also avoids mistakes being made with fewer disputes in court. Judges are also restricted from giving a biased view and will base their decision solely on what the law is. Without it there could be inconsistency causing many injustices which in turn could bring the law into disrepute.
Although the doctrine of precedent provides certainty it can be confusing because the Ratio decidendi can be difficult to distinguish from obiter dictor. Interpreting the law is also becoming ever more difficult to use because of the UK’s presence in the European Union. The EU statute law must be considered the highest law when deciding the result of a…