法則 Ep 2

Law post, as promised. This is my QT Question 1 :D

*          *          *

Question:
Consider how the doctrine of binding precedence operates in the English courts, having particular regard to its advantages and disadvantages.

Answer:
The English legal system operates on the basis of stare decisis. Loosely, it is translated to “stand by what has been decided”. It is also divided into the ratio decidendi and the obiter dicta.

Ratio decidendi, also known in English as “reason for deciding” is the part of a judgment stated by the judge. Simply put, it is the principles of law in which the people have used in order to reach the particular decision. The ratio decidendi also forms the precedent.

In contrast to the ratio decidendi, the obiter dicta includes the rest of the judgment and means “other things said”. It does not create precedent and future judges do not need to follow it.

A binding precedent is a decision made by courts which force judges to follow them when there are sufficient similarities between an earlier case and a later case. This means that whether or not a judge agrees or disagrees with the legal principles of law used, the decision must be followed.

Courts in the United Kingdom are lined according to the court hierarchy. The court at the highest point is the European Court of Justice. The following are the Supreme Court, the Court of Appeal, High Court, Crown Court, County Court and the Magistrates’ Court, in order. These groups are grouped into Appellate courts and courts of first instance.

Appellate courts include the European Court of Justice, the Supreme Court and the Court of Appeal. These courts hear appeals made by lower courts. The courts of first instance include the remaining courts. Known also as inferior courts, however, the County Court and Magistrates’ Court do not create precedent.

Binding precedents mostly affect lower courts. This is because all courts are bound by decisions made previously by themselves as well as senior courts. For example, the Court of Appeal is bound by its own decisions as well as the decisions by the European Court of Justice and the Supreme Court.

In modern society, binding precedents may prove to be of very good use. This is because it has a few advantages. Firstly, precedence helps in terms of law certainty. It a later case bears similarities to a previous case which has been made precedent, the outcome would be clear. Lawyers would also be able to advise their clients on what to expect and what not to expect from the case.

Secondly, binding precedence helps to shorten the time frame of the case. Since the case has similarly been brought forth before, formalities may be executed in a professional manner. This will deter the process of a long-winded litigation.

Furthermore, binding precedence allows for the law to be, to some extent, absolute. The people will have no need to fret because the law will not change. Therefore, the citizens may rely on the law to bring justice.

However, although binding precedence brings a few advantages, it also brings certain disadvantages. For one, since it provides some level of certainty, people may miss some key facts that may lead to some discrepancies, because of its rigidity.

Moreover, binding precedence could lead to slowness in growth in terms of the law. Since precedence functions to have all courts follow decisions made previously by themselves and higher courts, it leaves little space for improvement. This means that in future, even if changes were necessary, the system would not acknowledge it.

Lastly, binding precedence has certain complexities that could confuse one or both parties. Since the method of distinguishing may be used to avoid following decisions made by higher courts, lawyers might try to find even the slightest of distinctions that may separate that case with the case it bears similarities to. To some people, this may seem illogical.

All in all, it is safe to say that binding precedence both helps provide justice in our society. There may be a few setbacks to the system, but it is balanced, in a sense.

Marks: 19/25

~#~

Question 2 coming up :D

CIAO!!

P/S: Please click on my Nuffnang ads :) Thanks!!