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].

The Problem with Lawmakers in U.S.A

Legislator (Lawmaker)

A Legislator (or lawmaker) is a person who writes and passes laws, especially someone who is a member of a legislature. Legislators are usually politicians and are often elected by the people. The political theory of the separation of powers requires legislators to be different individuals from the members of the executive and the judiciary. Certain political systems adhere to this principle, others do not.

In continental European jurisprudence and legal discussion, "the legislator" (le législateur) is the abstract entity that has produced the laws. When there is room for interpretation, the intents of the legislator will be questioned, and the court is supposed to rule in the direction that it judges to fit the legislative intent the best — which can be uneasy, in the case of conflicting laws or constitutional provisions.

Article I of the Constitution vests all legislative power in the Congress.

The House and Senate are equal partners in the legislative process (legislation cannot be enacted without the consent of both chambers); however, the Constitution grants each chamber some unique powers. The Senate is uniquely empowered to ratify treaties and to approve top presidential appointments. Revenue-raising bills must originate in the House of Representatives, which also has the sole power of impeachment, while the Senate has the sole power to try impeachment cases.

Powers

The Article I of the Constitution sets forth most of the powers of Congress, which include numerous explicit powers enumerated in Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

v To borrow money on the credit of the United States;

v To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

v To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

v To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

v To provide for the punishment of counterfeiting the securities and current coin of the United States;

v To establish post offices and post roads;

v To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

v To constitute tribunals inferior to the Supreme Court;

v To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

v To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

v To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

v To provide and maintain a navy;

v To make rules for the government and regulation of the land and naval forces;

v To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

v To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

v To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles (16 km) square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.

Implied powers and the commerce clause

The Congress also has implied powers, which are derived from the Necessary and Proper Clause of the Constitution and permit Congress "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

Discussions

The importance of sources in the policy process is unclear. The legislators might be unable to make analytic distinctions, so it is possible that some legislators just rated the sources the same across the policy stages. The legislative leaders can make a plausible new idea out of the current issue. The legislation is the primary source of a policy idea and either the experience of a legislator or her constituents; the everyday life experience back in the district is the key to generating policy ideas.

The public underestimates what a difference one person can make in coming to their lawmaker with a problem. A lot of laws enacted begin with a constituent phone call or letter to a legislator. The lawmakers rely on legislative staff, particularly in formulating policy. While the staff, in turn, relies on a variety of sources of policy expertise, including executive agency officials, legislative study commissions, and what is happening in other states.

There is an existence of a lobbyist who tries to influence legislation on behalf of a special interest or a member of a lobby. The governments often define and regulate organized group lobbying. In the fact that there is an existence of an invisible body, the lawmaker continually weighs the detail before passing it across the public consent.

There are relatively small differences in the policy stages in terms of information sources used, with the impact of staff in policy formulation. The new ideas coming from the selected issues where the media have been powerful creates a great impact in the policy made by a legislator. The current issues that caused a national threat or needs in the national responsibility is an essential ingredient to make a justly law.

Both of the legislators and staff tend to rely on the traditional sources of policy information rather than on new source of information. The evaluation of the direct influence of public affairs organizations is difficult because of the variety of their purposes and because of the long-term nature of their work. The legislators may use the editorial review more often because they shape the public opinions.

It is possible that on a specific law, is a mixture of sprout of the new ideas, a foundational or current issues and the critical perspective of an editorial writer. The law-making body is always open for the law innovation with thorough study and justification. It passes in some different terms with accordance to public’s apprehension.

The legislators or lawmakers should answers any question with regards to the amended law. Thereupon, the social response is valued in the reasons why does the law created for. In a broad sense, the lawmakers should set aside the personal problems that they have. It should not reflect as a personal agenda or a public interest of the few who are included in the scope of the law. The responsibility of the lawmakers should possess the oath they took.

The problem with the lawmaking body in the United States might be based on the current issue. The domino effects took place in every part of the world. In a word, the worldwide issues do not only settle on one land but it can be highly felt in some various countries. Given the example about the discrimination among the black Americans; the law innovation stepped in the US when the rights of every black Americans have been neglected and the scope of their right is abused by the white Americans. The legislators created a law that treated the black Americans with equal rights.

Therefore, the laws are subject for a change. But not all laws are accordingly changed upon the current subject. There are laws that need expansion or broader distinctions. The synthetic creation of laws are not emphasized on what experience that a legislator gained in the past years, but on how to create a law in the way that the people in their country will enjoy it’s advantages.

Source:

Gray, V., & Lowery, D., (2002) Where Do Policy Ideas Come from? A Study of Minnesota Legislators and Staffers, Journal of Public Administration Research and Theory, 10 (3)