DOCTRINE OF PRECEDENT - LAW MAKING POTENTIAL More Judicial Precedent Resources: Judicial Precedent - Lecture Notes #1 THE JUDGES’ ROLE IN PRECEDENT The old view of the judges’ role was that they were merely ’declaring’ the existing law (the ’declaratory theory’). Lord Esher stated in Willis v Baddeley [1892] 2 QB 324: "There is ... no such thing as judge-made law‚ for the judges do not make the law‚ though they frequently have to apply existing law to circumstances as to which it has not
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Ratio decidendi and obiter dicta Learning objectives At the end of this module‚ you will be able to: * distinguish between ratio decidendi and obiter dicta. * apply well-established rules to identify the ratio decidendi in a decision. This module is intended as a useful exercise in revision. If you are certain that you understand how to discover the ratio in an opinion‚ you should skim lightly over this material. What is the ratio decidendi? As you probably recall from your studies
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Question 1 a) The legal fiction upon which Australia was founded refers to the British doctrine‚ “terra nullius”. The phrase translates to “land without ownership”. When Australia was founded‚ even though the colonisers acknowledged the presence of the Indigenous they considered the Aboriginals too primitive to be actual owners. The Aboriginals were considered too primitive with no identifiable hierarchy or political structure. This legal fiction had a significant impact on Australia with the
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Judicial Precedent (Case Law) The nature of judicial precedent In examining the development of our law reference was made to the role played by the judges in its evolution‚ the common law and equity being the product of judicial reasoning in that they have both evolved through the system of case law whereby law is made for the purpose of the decision of the specific case before the court. It is natural that if a similar dispute should arise again then the previous decisions should be used as
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THE ABILITY OF JUDGES AND COURTS TO MAKE LAW LAW-MAKING THROUGH COURTS: • Common law was established in England by King Henry II and adopted by the Australian legal system. • It is law developed through the courts. It is also known as judge-made law and case law. • It can only be created when a case is brought to the courts. • It develops through the doctrine of precedent where the reasons for decisions of courts are followed by future courts. COURTS MAKE LAW BY: • Deciding on a new
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In this question I will be defining what the Binding Precedent is and its main principles that are applied in judicial precedent. I will look at the structure of the court system and whether in this structure the courts are being bound by the decision of others higher courts. I will reflect at how far the binding precedent goes to ensure the existence of both certainty and flexibility in common law. I will talk about the advantages and disadvantages that contribute to the doctrine of binding precedent
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Are Judges the Makers or Discoverers of the Law?: Theories of Adjudication and Stare Decisis with Special Reference to Case Law in Pakistan I. Introduction THE debate about whether judges make or create the law is at the centre of any discussion about stare decisis. Modern authors1 have discussed the views of judges and jurists in the past. This work focuses on some of the notable judges and jurists of the twentieth century‚ such as Lord Denning‚ Lord Reid‚ Lord Devlin‚ Bodenheimer‚ Hart
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rules and doctrines have tremendous influence on administration of justice system in the country. Particularly as an offshoot of that influence‚ the common law doctrine of stare decisis‚ translated as judicial precedent or simply as precedent‚1 has come to be regarded as a source of law in the country.2 Simply put‚ stare decisis is a practice in the administration of justice in common law jurisdictions‚3 whereby a court is bound to follow decisions of a higher court in the hierarchy of the court
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Nowadays‚ the Internet technology is closely related to people daily living‚ which brings many convenience and benefit to people. However‚ with Internet technology is booming in last decade that also exposes many problems‚ such as Internet privacy and cyber crime. Therefore‚ Internet censorship is in order to make safety and healthy online environment‚ which is widely used by many organizations and groups. In the strict word to explain what Internet censorship is suppression the information to access
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Led Zeppelin "Stairway To Heaven" Song Analysis I thought I’d analyze Led Zeppelin’s iconic "Stairway To Heaven" in honor of the anniversary of the band’s Led Zeppelin 4 album‚ which was released 40 years ago this week. The song was voted #3 in 2000 by VH1 on their list of the "100 Greatest Rock Songs." It was the most requested song on FM radio stations in the United States in the 1970s‚ despite never having been released as a single. This apparently was a decision made by the band’s manager‚ Peter
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