The Doctrine Of Judicial Law Essay

1085 Words Nov 29th, 2015 null Page
Judicial Precedent When critically analysing to what extent the doctrine of Judicial Precedent affects Judicial Law making, one must first contemplate what the doctrine of Judicial Precedent is. The doctrine of Judicial Precedent is fundamentally a rule that all lower courts are to be bound by the decision or ratio decidendi of the higher courts. As a result of this, cases that are alike are decided in a similar way. However, it is not this simple, as it will be seen throughout this essay that a lot more circumstances are involved that affect the judicial law making process. Judicial Law making (otherwise known as common law) is law that is made within the courts that judges decide on creating. Through relevant case law and journal articles from academics, the extent to which the doctrine of judicial precedent affects judge made law and to whether this is a positive or negative outcome will be evaluated. First and foremost, it is important to outline precisely how the doctrine affects common law. It can be claimed that the doctrine hinders common law but on the reverse, it can also aid it. Tensions can arise between the two because precedent requires courts to treat earlier cases as correctly ruled. Two different types of decision making should then be outlined, these being ‘rule based’ and ‘reason based’ decisions. When a decision is made it can either be made on the strict rules that apply to the situation or on the balance of all relevant reason. The contrast of…

Related Documents