This inquiry raises the issue of the function of case in point. In order to analyze the statement. examination of the philosophy of the judicial case in point is required. Case jurisprudence is used to depict the aggregation of reported determinations of the tribunals. and the rules which stem from them. Lord Macmillan made this observation that the instance by instance development is superior to those based on conjectural theoretical accounts. “… . . any fixed theory and that rules ever fail because they ne’er seem to suit the instance in manus. and so prefers to go forth theory and rule entirely. ” The philosophy of judicial binding case in point. concerns itself with the importance of instance jurisprudence. When instances are examined. the facts of the instance are considered. More significantly. how the jurisprudence applies to these facts is scrutinised. It is the latter that produces case in point. based on the axiom of stare decisis. Precedent can merely run. if the legal grounds for past determinations are known. The ‘reason for deciding’ or ratio decidendi. as a general regulation is adhering on all lower tribunals. It is of import to separate between the different types of case in point. Original case in point concerns a point of jurisprudence that hasn’t been decided. What is derived from this is. a new case in point for future usage.
Adhering case in point stems from earlier instance jurisprudence and must be followed. Persuasive case in point is non adhering. but tribunals may take it in to consideration when sing a peculiar rule. The statement suggests that case in point does non develop different rules ‘into a coherent whole’ . This is supported by the fact that the sheer volume of distinct instances. increases all the clip. Opinions are frequently long. and non needfully ‘coherent’ in nature. This uninterrupted nature of the opinions makes it really hard to separate between the ratio decidendi and obiter pronouncement. as seen in Donoghue V Stephenson. In order to avoid adhering case in points. Judgess have sought to separate instances on differing facts. This has resulted in a series of unlogical differentiations. making really complex countries of jurisprudence. The two instances which demonstrate separating are Balfour v Balfour and Merritt V Merritt. Both instances were sing breach of contract between partners. It was held in Balfour that there was no lawfully adhering contract between them. In Merritt. the twosome who were estranged at the clip of the understanding had a lawfully enforceable contract.
Furthermore. the unsystematic patterned advance of instance jurisprudence adds to the imprecise nature of the development of instance jurisprudence. Another point to see is the development of the jurisprudence goes merely every bit far as the instances brought frontward. which has deductions for growing in certain countries of the jurisprudence. If an country of jurisprudence in undeveloped or ill-defined. a determination can non be made until a instance is decided. Yet it is besides argued that the current system of case in point is consistent. in the regard to the certainty of determinations. The English system of case in point is based on the Latin axiom stare decisis. which translated is ‘stand by decisions’ . Lawyers are able to rede clients based on what had gone earlier. so can theorize to the likely result of instances. This certainty in the jurisprudence besides promotes consistence and equity in the jurisprudence. Case jurisprudence demonstrates that the development of different rules can be really precise and elaborate. It can be disputed that the jurisprudence. is in-fact good illustrated through gradual development.
For illustration there are many countries of jurisprudence that owe their being to judicial jurisprudence doing. such as contract or civil wrong jurisprudence. Contract in specific still has regulations that day of the month back to the 19th century. Tort jurisprudence has been mostly shaped by case in point. In the instance of Donoghue. the really important ‘neighbour principle’ was created. The function of case in point. harmonizing to the statement is about ‘disciplining peculiar judges’ . This is based on the thought that possibly Judgess need to be controlled or restricted with respects to their jurisprudence doing power. In so making. raising the controversial issue. do Judgess do jurisprudence? Historically. the legal system has evolved from sifting through local imposts and judicial determinations. therefore making what we now know as the common jurisprudence. The traditional position is that Judgess simply clarify what the jurisprudence is. instead than do jurisprudence. The opposing position. that Judgess do to a certain extent brand jurisprudence seems to be a more accurate description. As will be demonstrated. Judgess use precedent to make new jurisprudence and extend old rules.
Application of judicial case in point is ever capable to reading if the nomenclature is obscure or equivocal. When construing legislative acts if the diction is non clear so its significance will necessitate to be interpreted. The same occurs if it does non cover for all contingencies. This suggests that there is no certainty in the jurisprudence. as the application of jurisprudence ( instance or legislative act ) in cases like this is non automatic. Despite this trouble. Judgess however have to do a determination. This is illustrated in the instance of Re A ( Children ) sing the legality of an operation on Thai twins. This upholds the position that Judgess do hold to do jurisprudence in these state of affairss. The contention arises as many believe that the Judgess should non hold the power to do new Torahs. but they are to use it. Possibly this is what it means to train Judgess via case in point? As already mentioned. the consequence of stare decisis is that the justice is bound by old determinations. So what do we do of cases. where Judgess have overruled old instance jurisprudence. therefore making new jurisprudence.
In the instance of R v R a adult male was charged with ravishing his married woman. The Judgess in this instance had to make up one’s mind whether to stand by the old jurisprudence that a married adult female automatically consented. By reasoning that the case in point was outdated. it was held that if the married woman did non consent to sex. her hubby could be guilty of colza. The statement goes on to propose that case in point is about ‘maintaining the hierarchy of the courts’ . Surely the rigidity of the philosophy does hold this consequence. This is because by and large every tribunal is bound to follow determinations made by tribunals above it. Besides appellant tribunals are bound be their past determinations. The thought that each tribunal has a definite standing in relation to other tribunals is what will be examined below. The highest tribunal impacting legal system in England and Wales is The European Court Of Justice. ( ECJ ) A determination made by the ECJ on European jurisprudence or its establishments. is adhering on all UK tribunals.
However. the ECJ is non bound by its old determinations. nor does it hold the construct of stare decisis. This really flexible attack to past case in points is a blunt contrast to the more stiff attack of national tribunals. As the ECJ’s primary concern is European Union jurisprudence. the staying domestic jurisprudence is governed by the House of Lords. which is now the Supreme Court. Until 1966. the House of Lords was bound by itself. unless the determination had been made per incuriam or in mistake. This was the regulation as demonstrated in London Street Tramways v London County Council. This had obvious drawbacks with respects to the flexibleness. the jurisprudence couldn’t be changed and unlogical determinations stood. At that clip the lone manner to alter a “wrong” determination by the House of Lords. was by a new Act of Parliament.
This can be seen in DPP V Smith. The regulation in London Tramways was abolished when the Lord Chancellor issued a Practice Statement. Affecting. that the House of Lords was no longer bound by old determinations. but there is a reluctance to utilize it as seen in R V Kansal. This reluctance can besides be concluded via a statement made by Lord Cross. The Practice Statement ‘does non intend that whenever…a old determination was incorrect. we should change by reversal it’ . The Court of Appeal has two divisions of tribunal. the Civil and Criminal division ensuing in changing regulations for case in points. However. both divisions are bound by the ECJ and the Supreme Court. The determination in Young v Bristol Aeroplane Co Ltd laid down the rules associating to whether the Court of Appeal ( Civil Division ) is bound by old determinations. By and large the Court of Appeal is bound by its past determinations. but there are three exclusions. 1. Conflict of old determinations.
2. Where a old determinations have been overruled by the House of Lords. 3. Decision was made per incuriam. Another country of argument is whether the Court of Appeal should be bound by the determinations made by the higher tribunals. There have been attempts by Lord Denning to implement that the Court of Appeal should non be bound by the Supreme Court. For illustration in Broome v Cassell & A ; Co Ltd Denning refused to follow a House of Lords determination in Rookes v Barnard. This has raised much argument. the chief statement favoring Lord Dennings’ position is that really few instances reach the Supreme Court. so mistakes may take many old ages to rectify. In the instance of Miliango. the parties could hold suffered great unfairness if the Court of Appeal followed the House of Lords determinations in Havana Railways. The Divisional and High Court are bound by their ain determinations ; nevertheless High Court determinations are non adhering over Divisional Courts.
The Magistrates Court is non bound by any of its old determinations. but is strongly persuaded by them to advance certainty in condemnable jurisprudence. There is grounds to propose that the function of case in point is to train Judgess. as instances stand in relationship to other instances. The construct of stare decisis could in theory bound the judges’ ability to do jurisprudence. However as we have seen. Judgess find ways of avoiding awkward case in point. therefore invalidating the system of ‘standing by determinations made’ . This besides does non use when Judgess make original case in point. As we have seen the underlying rule of the philosophy of judicial case in point. is that the tribunals form a hierarchy. With the top being off greater importance as to their legal value. The hierarchy of the tribunals are good defined to accomplish legal certainty. For illustration the Court of Appeal could be relevant in many waies. but it is the philosophy of case in point which dictates to us in which courts the determination could be relevant in. Word count -1770 gg57
Ward. Richard & A ; Akhtar. Amanda. ( 2008 ) . Walker & A ; Walker’s English Legal System. 10th edn. . ( Oxford University Press ) . Elliot & A ; Quinn. ( 2009 ) . English Legal System. 10th edn. ( Pearson Education ) . Martin. Jacqueline. ( 2007 ) The English Legal System. 5th edn. . ( Hodder Education ) . Elliot. Catherine. ( 2009 ) English Legal System Essential Cases and Materials. 2nd edn. . ( Pearson Education ) . Cross. R. ( 1991 ) . Precedent in English Law 4th edn. . ( Oxford: Clarendon Press ) . Slapper. Gary & A ; Kelly. David. The English Legal System 11th edn. . ( Routledge )
‘European Communites Act 1972’ . Office of Public Sector Information hypertext transfer protocol: //www. opsi. gov. uk/acts/acts1972/ukpga_19720068_en_1. accessed 26/07/10 ‘The Doctrine of Judicial Precedent’ hypertext transfer protocol: //www. oup. com/uk/orc/bin/9780199557745/hw7e_ch06. pdf. accessed 26/07/10