Judicial Precedent

Introduction

Every court is given the main task in creating the law and their decisions plays an important role explaining the case law system. Moreover, courts works makes the specific reference as to how law is made and is entirely concerns with rights and policy. Concerning the application of general principles of law and the judicial precedent made influence the appropriateness of judicial law making by most of the court. As in addition, there is an influencing factor on the reluctance of courts in the civil law, common law and international law systems to act as legislatures.

Judicial Precedent

Precedent can be described in two senses. First – Judicial precedent is convenient shorthand for the obligation of the court to follow the decision or ruling of a court higher than it in the hierarchy of a legal system, unless it can distinguish the earlier case. Second- Superior court must follow its own earlier decision and must not depart from it unless it can distinguish the earlier case. This aspect of precedent is sometimes referred to as “stare decisis” (Nelson, 2006). Judicial precedents are necessary in developing the legal system in through the way of supplementing appropriate statutes, administrating justice, sub-serving the application of statutes with concreteness and flexibility, increasing legal Certainty, and reducing the volume of litigation. Judicial precedent earns respect because of its three essential functions: the precedent system is a functional component in a legal system; to confine the power of judges; and to emancipate judges to improve and develop the legal system (Qi, 2006).

(a)The House of Lords has declared that the system of precedent is an indispensable foundation providing certainty in the law. Explain how the system of precedent operates to pursue the goal of certainty whilst ensuring that certainty does not result in rigidity.

The doctrine of judicial precedent constitutes an unnecessary restriction on the development of the law. The impact of decisions of the courts has been reinforced by adoption of the doctrine of stare decisis where there is a binding force of precedents is considered to be one of the main distinct features of the common law system (Lim A Po, 2003). The introduction of the court in the jurisdiction of the court is a remarkable fact in common law and its absence in the civil law and international law systems. In the final analysis, the doctrine of stare decisis is important in constitutional cases and the judicial precedent may disregard if there is special jurisdiction. The doctrine of precedent is vital to final appellate courts. Precedent provides the assurance of continuity, consistency, predictability and fairness in a legal system. However, the precedent must flexible to overrule the decisions or not (Nelson, 2006).

(b) How do the Courts approach the task of the interpretation of Statutes and how far are the judicial approaches capable of achieving the correct interpretation?

There should be legal pressures to assimilate such as the substantive changes to large areas of law; largely inaccessible civil law sources, written in languages which are few were able to read; adoption of English as the language of the laws, the government, and the courts; administration of justice following common law procedures by common-law trained lawyers and judges who were by-and-large unfamiliar with and unsympathetic to the civil law traditions they were administering; and so on (Glenn, 2008). In holistic view, precedent should be non-controversial that the responsibility of the court is foremost to seek and rationalize decisions within the existing body of regulations (Lim A Po, 2003).

(c) To what extent has membership of the EC restricted the freedom of the Courts as regards statutory interpretation?

The application of the doctrine is to the extent in which it constraints judicial innovativeness in establishing and declaring applicable norms. And the latter consideration is a reference to the court’s appellate jurisdiction, but the Statement of the House of Lords regards the future application of the doctrine is a clear illustration of a general tendency in the common law system to structurally soften its rigid application (Lim A Po, 2003). There are occasions when one statute supersedes an earlier statue to the extent of conflict but the earlier statutes remain in effect for other purposes which is often called the “effect on existing law” or “construction with other laws”. In this case, courts will try to harmonize the two so that both can be given effect. A court should give importance on the two conflicting statutes to give effect to each if it, while preserving their sense and purpose (Costello, 2006).

Conclusion

The judicial law making is a common and generally accepted role in both legal systems. Judicial decisions play a creative part in the process of evolution of the law. But it seems that when major policy issues are involved, courts in the civil law system tend to observe a larger-degree of self-restraint in judicial law making than their counterparts in the common law system.

References:

Costello, G., 2006. Statutory Interpretation: General Principles and Recent Trends. CRS Report for Congress. [Online] Available at: http://www.coherentbabble.com/signingstatements/CRS/CRS-ON-97-589.pdf. [Accessed 10 Feb 2010].

Glenn, J., 2008. Mixed Jurisdictions in the Commonwealth Caribbean: Mixing , Unmixing, Remixing. Electronic Journal of Comparative Law, Vol. 12 No. 1. [Online] Available at: http://www.ejcl.org/121/art121-10.pdf. [Accessed 10 Feb 2010].

Lim A Po, H., 2003. “Bridging the Divide” The Interface between the Civil Law System and the Common Law System with specific reference to the role of the Caribbean Court of Justice. [Online] Available at: http://www.caribbeancourtofjustice.org/papersandarticles/Bridging%20the%20Divide.pdf. [Accessed 10 Feb 2010].

Nelson, R., (Jud.) 2006. New Final Appellate Courts in the Commonwealth and Doctrine of Precedent. Caribbean Court of Justice. [Online] Available at: http://www.caribbeancourtofjustice.org/. [Accessed 10 Feb 2010].

Qi, Z., 2006. Keeping Pace with an Evolving Society: The development of a Precedent System in China. [Online] Available at: http://www.law.ntu.edu.tw/east-asia2006/EA-Home/PD/%E4%B8%AD%E5%9C%8B/2006032638.pdf. [Accessed 10 Feb 2010].