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 issue that
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precedent signifies the practice whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent is a practice of the court that provides guidance to the judges when they apply case precedents. Black’s Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases‚ which helps provide certainty‚ consistency and clarity in the application
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a legal case establishing a principle or rule that a court or other judicial body may utilize when deciding subsequent cases with similar issues or facts. What are the advantages and disadvantages of having a legal system based upon the doctrine of precedent instead of having a legal system based upon codified law? Advantages 1. Provides certainty in law. 2. Judges have clear cases to follow. 3. Lower courts follow higher courts. 4. It also leads to an orderly development of the law. Only
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precedent is. Precedent “In common law legal systems‚ a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts” Example Let’s say that a Court establishes that it is illegal for people to smoke or be in possession of Tobacco. The Court has clearly explained‚ in its decision‚ why it is illegal according to law to smoke Tobacco. This is Case A.Now‚ someone is arrested for smoking
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that hierarchy. In general terms this means that when judges try cases they will check to see if a similar situation has come before a court previously. If the precedent was set by a court of equal or higher status to the court deciding the new case‚ then the judge in the present case should follow the rule of law established in the earlier case. Where the precedent is from a lower court in the hierarchy‚ the judge in the new case may not follow but will certainly consider it. It is noted that the
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independent judges where there are no external or political influence regarding its decisions. Judiciary will function through the administration and interpretation of laws for its cases with the doctrine of precendents where lower courts in the same hierarchy are bounded within the prescribed limits by prior decisions of superior courts if its cases are similar in nature. Superior court constructs statutes that are interpreted and compulsory to be applied in all lower courts according to doctrine of precedent
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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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reject. Such a situation arose in the case of Tiverton estates v Wearwell. In this case‚ the court decided to follow previous decisions rather than the inconsistent decisions of Law v Jones. Secondly‚ where a decision of its own has been impliedly overruled by the House of Lords. In the case of Family Housing Association v Jones‚ the Court of Appeal was obliged to ignore its previous decision in the distinction of lease and license in property law. Although the cases were not expressly overruled‚ its
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The House of Lords has declared that the system of precedent is an indispensable foundation providing certainty in the law. Explain how the system of precedent operates to pursue the goal of certainty whilst ensuring that certainty does not result in rigidity. Judicial precedent: A judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for the legal principle embodied in its decision A judicial precedent is a decision of the
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Publishing F4 ENG Study Text Corporate and Business Law ACCA ACCA Paper F4 (ENG) Corporate and business law (English) Welcome to Emile Woolf‘s study text for Paper F4 Corporate and business law (English) which is: Written by tutors Comprehensive but concise In simple English Used around the world by Emile Woolf Colleges Publishing Second edition published by Emile Woolf Publishing Limited Crowthorne Enterprise Centre‚ Crowthorne Business Estate‚ Old Wokingham Road
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