A judge’s function in a legal system would be more of playing a function in construing jurisprudence as compared to doing a jurisprudence which would non be a chief function of the justice itself. As Torahs will fall under many different parts. the written jurisprudence and unwritten jurisprudence will be the basic 1s that separate the two.
Written Torahs will be such as foremost. the fundamental law which is the basic model of the state and fundamentally. the supreme jurisprudence of Singapore. It can be amended. but by members of the parliament. Next will be Acts of the Apostless of parliament whereby the statute law procedure happens which starts as a measure to a jurisprudence. Point to observe that the constructing of Torahs is non in any field of inclusion for a justice to be in as they are all decided by the people that are chosen by the citizens and is technically trusted to keep the state when a justice is non.
But in unwritten Torahs. a function that a justice plays in will be in footings of instance Torahs in which it is non locked into any legislative act but alternatively opinions that the tribunals have delivered. And one time a instance has been decided. future instances with similar fact scenarios will be bound by the earlier determination if the earlier determination is made by a higher tribunal in the same hierarchy or a determination made from the court’s old determination which will be the philosophy of stare decisis. Thus. a “judge-made law” on a instance by instance footing.
My personal sentiment that as Judgess know the jurisprudence by difficult from experience and surveies. they will non follow their ain private opinion but to follow the jurisprudence which is already at manus when a “new question” is presented to them. Therefore. a justice is to simply work out it from the bing rules at manus. I believe that this is what differ when replying the inquiry on a justice doing a jurisprudence. Does a justice plays a portion in the development of the Torahs? No. they are simply an audience which must adhere to it. But. they ‘adapt’ as the clip past by and more instances appear due to alterations in engineering and moral rights which is most critical to me as a personal sentiment on the legal system.
B ) What is your apprehension of the philosophy of ‘stare decisis’ ? Using suited instance Torahs. explicate the advantages and disadvantages ( if any ) of the philosophy when applied by the Judgess. ( 15m )
The philosophy of stare decisis would take two signifiers one in which that a higher court’s determination binds a lower tribunal which would intend that a lower tribunal must follow a higher court’s determination on a similar affair. And to set it in the context of Singapore’s tribunal hierarchy. the High Court must follow Court of Appeal determinations. Similarly. Subordinate Courts must follow High Court and Court of Appeal determinations and so on.
The 2nd signifier would be the tribunals following a old determination that they themselves have made. Therefore intending. the Court of Appeal normally following old determinations of the Court of Appeal and the High Court will be following old determinations of the High Court and so on. The purpose of the philosophy will be to guarantee that similar instances being treated likewise.
Therefore. the Judgess are merely required to use the wireless decidendi which is the ground for the determination of the higher tribunal with the same hierarchy such as the ratio decidendi found in the determinations of the Singapore Court of Appeal are purely adhering on the Singapore High Court. the District Court and the Magistrate’s Court. Judges besides sometimes give their positions of jurisprudence which are non related to the difference at manus called obiter pronouncement and these are non purely adhering.