Judicial Precedent Essay

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Judicial Precedent

ESSAY: a) Explain and illustrate the operation of the doctrine of judicial precedent. b) How far is it true to say judges are bound by decisions in earlier cases?

A)

Judicial precedent is where the past decisions of the judges create law for future judges to follow. English precedent is based on the Latin, stare decisis, meaning stand by what has been said in the past. This allows the rules system to be consistent: like cases treated alike, and it is just, as people can decide on a course of conduct knowing what the legal consequences will be.
Judicial Precedent can only operate if the legal reasons for past decisions are known, therefore, at the end of the case there will be a
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This idea of creating new law by analogy can be seen in Hunter v Canary Wharf (1995). The interference with the reception on Hunter's television because of Canary Wharf Tower having been built, was likened to the case of Bland v Molselely (1661), in respect to the loss of a view. The two things were said to be a matter of "delight" and not "necessity" so could not come before the courts.
In England and Wales, the courts have a very rigid doctrine of judicial precedent, which has the effect that every court is bound to follow any decision made by a higher court and that appellate courts are bound by their own decisions. Decisions made in the European Court of Justice bind all other courts since 1973 and can overrule its own decisions. Decisions made in the House of Lords bind all lower courts, especially Court of Appeal, and, since 1966 when it issued a practise statement, can overrule past decisions. This is clearly seen in DPP. NI v Lynch when the House of Lords said that duress could be a defence to a charge of murder, and in R v Howe they said it could not. The Court of Appeal has two divisions, which are both bound by the higher courts but not each other. Each single division is bound by its own previous decisions. Both have the Young v Bristol Aeroplane Exceptions however. Divisional Courts are bound by higher courts and bind lower courts. They are generally binding

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