Judicial Precedent Essay Plan Essay, Research Paper

Judicial Precedent Essay planIntro Say what precedent

is: ?Stare decesis et non

quieta movere? = Stand by what has been decided and do not unsettle the

established. Which means a decision made in one case is binding on all

following cases of similar fact in lower courts.Then say: there are

3 main principles involved. (1) Ratio Decidendi = the reasoning behind the

judges decision. This is the binding element of a judgement/case (2) Reliable system of law reporting: there are

thousands of cases each day and so the law keeps changing. You need to be able

to get the ratio decidendi from cases or else judges may make decisions in new

cases ?Per incuriam? = in error. (3) Court Hierarchy: Decisions made high up in

the hierarchy are binding on all lower courts.Then talk about the

methods/rules judges have to avoid binding precedent: (1) Overruling: judges can, (a) Overrule decisions made lower in court

hierarchy (b) Overrule past decisions made in their own

court eg. House of lords. R

-v- R marital rape case. Before=a husband could have sex with his wife

at any time she always gave consent even if she didn?t want to. Now= House of

Lords abolished that rule made by themselves. They could do this because of the

1966 practice direction(Lord chancellor) which said that the house of lords was

no longer bound by its previous decisions.(2) Distinguishing: judges can argue that the

facts in their cases are different to those where a case has a precedent set in

it. eg. R-v-Brown &

R-v-Wilson. In R-v-Brown

judges argued that sadomasochism was unlawful assault and the defendants could

not use consent. But, in R-v-Wilson judges argued that wife gave consent and

initiated the buttock branding by her husband ie. It was her idea so the courts

distinguished between the two cases.Then talk about why

judges have to avoid precedent: (1) Due to changing social and physical

attitudes old laws should be change to suit new times. Eg. Herrington-v-BRB? a child was badly injured on a train

track(Electrocuted) and the judges held that even though the kid was trespassing

BRB still owed a duty of care to the child. (2) In courts of appeal: where a person?s

freedom is at stake. The judges should be able to use methods to change the law

in order to save the individual from prison.Lastly

you should talk about why judges shouldn?t change/develop the law: (1) Judges are not elected by the people so it

should only be fair that government which is elected by the people make the

laws. This is called parliament sovereignty. (2) Judges are only concerned with the one

individual/defendant in their case and are not worried at how their decisions

could be massively effective on everyone else.If you follow this

essay plan I guarantee you will get an A