London south bank university foundation campus
Law assignment
Student name: abdulrhman alsalaie
Question :
Discuss whether the doctrine of judicial precedent allow flexibility to judges to create new laws?
The Doctrine of judicial precedent, also known as mandatory precedent is referred to as the system in which judges use previous cases as guidelines in new cases. While doing this they will follow or apply the judgment of previous cases in their actual case. Under the doctrine of Stare decisis( stand by decision) a lower court must honor finding discovered by a higher court and is bound to follow or apply the precedent. Judicial precedent will not always apply as the original case must be similar or similar enough to the present case in which the doctrine of judicial precedent will be used. When there is no precedent in a case, then this case is known as primae impressionis (a case of first impression). Whenever the case is similar enough then the principle of binding or persuasive precedent will be used. We will analyze the doctrine to see if there is enough space for the law to develop.
In the united Kingdom the highest court according to the hierarchy is the European Court of justice followed by the House Of Lords, the Court of Appeal and at the bottom of the hierarchy we have the Magistrate Court and County Courts. When using the precedent principle all courts below the European Court Of Justice will have to have to honor it’s findings of law, and when the House Of Lords will produce a judgment on a case of first impression all courts under him will have to honor it’s findings if the case is similar enough. When a precedent establishes an important legal principle, or represents a new or changed law on a particular issue, that precedent is often known as a landmark decision. In England landmark decision is know as leading case. Judicial precedent has it’s advantages as it’s disadvantages and is a very complex doctrine...