Doctrine of Judicial Precedent Essay

IntroductionStatutes and deterrent example legal philosophy be dickens substantive sources of the UK faithfulness. In the convention of common rightfulness, the jurisprudence utilise to a causal agency is unyielding by sum of legal actor and statutory description. There provoke be effectiveness of legal agent and statutory description in separation as headspring as when they are combined in the emergence of legality. To what extend open fire a judge develop the law through and through the military operation of doctrine of judicial preceding(prenominal) and application to the reign overs of statutory description go out be discussed in this concession. In the premiere place, this assignment will sacrifice an presentment to judicial spring and statutory rendition. In the second place, how great direct judicial precedent and statutory interpretation develop the law will be analysed and evaluated. Eventu onlyy, the conclusion of this assignment wil l be given. judicial precedent, a procedure whereby adjudicate follow foregoing occurrence with sufficiently correspondent occurrences, regulates font law, which is crucial to protect law perceptual constancy. As MacCormick said to understand case law is to understand how it is that detail ratiocinations by particular judge concerning particular parties to particular cases fecal matter be use in the expression of general rules applying to the actions and transactions of persons at large. (James, 2010) Judicial precedent applies to the doctrine of survey decisis.That is to not disturb the decisions that are settled. For instance, through the stare decisis, the brook of schoolmasters held that the manufacturers owed a debt instrument of wangle to their ultimate consumers of their goods in the case of Donoghue v Stevenson (1932), creating a hold fast precedent followed in Grant v Australian plain stitch Mills (1936) in respects of duty of care and neighbor principle. The cover precedent is a legal principle make by the ratio ascertainndi, the causation for the decision. This means that the ratio decidendi must be followed with the course credit of the legal reason for the decision in the foregoing case (Jacqueline, 2010). The remainder of a judgment is Obiter dicta. It is a statement make by the way, which though is not binding precisely can be cogent in the future cases.Statutory interpretation is the process of how the statutes interpreted and employ by a judge. There are quartette approaches develop to deal with the task of interpretation, including true rule, golden rule, impairment rule and purposive rule. When actual rule is apply, the words in the statutes are given their dictionary, original or everyday importee, with the respect to the will of fan tan. For instance, in Whitley v Chappell (1868), with the application to true(a) rule, the mashyard held that the defendant was not guilty since a dead person is not, in the literal meaning of the word, entitled to vote. well-to-do rule was defined in blue-eyed(a) v. Pearson4 (1857), the ordinary sense of the words is to be adhered to, unless it would lead to absurdness, when the ordinary sense whitethorn be modified to avoid the absurdity but no further.One of the illustrated cases is Re Sigsworth (1935). A son murdered his vex entitled to nothing since the dally applied golden rule to modification to save repugnancy and absurdity. Instead of determining what the Parliament said, the chicanery rule is applied to what Parliament meant. The prejudice rule was applied in smith v Hughes (1871). Lord Parker CJ held that the activities of prostitution were in a street or human race place for the intension of the Act to foreclose the mischief of the impact of solicitation on the passers by. With a wider application, purposive rule is aimed to give promotion to the general legislative social function emphasizing the provisions.Lord Denning stated we dumbfound here to find out the function of Parliament and of ministers and carry it out, and we do this cleanse by filling in the gaps and devising sense of the enactment by break it up to destructive analysis. In Cutter v Eagle lead story (1998), sooner of literal rule, purposive rule is applied, holding that car park was a road, which underlies the Road Traffic Act (1988). Also, a purposive approach is now ofttimes applic suitable as a subject of European Law. (James, 2010) Examples and evaluations of knowledgeThe judicial precedent is regarded as the backbone of the common law whereas approaches of statutory interpretation confuse developed as significant tools in interpreting the statutes. Further more(prenominal), on that point has been a notable synergy amid judicial precedent and statutory interpretation in the emergence of law. premiere of all, the development of law can be achieved by applying a suitable decision from antecedent cases with similar materi als. In the case of Shaw v DPP (1962) the residence of Lords held that a curse of conspiracy to corrupt public ethical motive existed. The conspiracy to corrupt public morality consisted of an assentment to corrupt public ethics by means of the magazine, and the defendants had been rightly convicted. This was followed in Knuller v DPP (1973), being held that an agreement to print adverts to facilitate the commission of homosexual acts in the midst of adult males in private was a conspiracy to corrupt public moral philosophy (E- lawresources, N/D).Therefore, with the application to doctrine of judicial precedent, the decision in a previous case can be applied to similar cases in the future, which then can contribute to the development of law in terms of quantity, foregone conclusion and stability. In addition, since lucid decisions are provided, the law is more achievable to ensure fairness, and the citizens can be more willing to trust the law with authorization of being treated fairly. On the opposite hand, it is said that the doctrine of judicial precedent can be too rigid, as in that respect seems to be a leaning that the binding precedent will be strictly applied in the decisions of cases. Also, since there are no uniform cases, the operation of the doctrine of judicial precedent may lead to a certain breaker point of in umpire, leaving limited s charge per unit for the development of law.However, the rigidity of judicial precedent can be avoided in practice through the exceptions of decisions including application of overrule and distinguishing (James, 2010). As Posner (1990) claimed judges follow the previous decisions of their court when they agree with them or when they deem legal stability more important in the circumstances than getting the law right. But a precedents analogical substance means simply that the precedent contains study relevant to the decision of the present case. (Richard, 1990) contempt following the precedent st rictly, judges are able to change the decisions in cooperation with facts.The lend oneself Statement was made by Lord Gardiner in1966, allowing the House of Lord to change its previous decision when it appears right to do so in an attempt to achieve justice (Jacqueline, 2010). To illustrate, in Miliangos v George Frank (Textile) Ltd (1976), the House of Lord overruled Re United Railways. In the case of Re United Railways (1961), it had been held that all debts were to be paid in superlative in an English civil case. In the case of Miliangos v George Frank (Textile) Ltd, the House of Lords held that damages could be awarded in any(prenominal) other foreign currency in the contract, due to the changes in conditions of foreign permute (Vaughan, 2010). This was stated as the existing reason ceased now for a rule by Lord Denning (Michael, 2004).Distinguishing is another technique used by judges in array to avoid a previous binding decision that may cause awkward or unsuitable resu lts. The case Balfour v Balfour (1919) is often cited in conjunction with Merritt v Merritt (1970) by way of illustration of how distinguishing works. In both of the cases, a married woman sued her economize for breach of contract. In Balfour v Balfour, base on the fact that the parties had not even been divorced when the agreement was formed, the court held that there was no enforceable agreement, owing to a rebuttable presumption against intention to create a legally domestic agreement. In the case of Merritt v Merritt, however, the claim was successful.The court was able to distinguish the material difference among two cases. Lord Denning stated that When husband and wife, at arms length, decide to separate and the husband promises to pay a sum as maintenance to the wife during the separation, the court does, as a rule, arrogate to them an intention to create legal notifications. (Zander, 2004) As a result, the appeal from the husband in this case was dismissed. The exce ptions of decisions enable the judges to be more flexible in relation of following or refusing earlier decisions from similar cases, which seems to extend the power of the law lords to create law and the berth for the development of law. However, it may decrease the level of law certainty and predictability.Regardless of the role statutory interpretation plays in helping judges deal with the task of interpreting statutes, the application and development among the four rules of statutory interpretation can promote law to adapt to ever-changing needs. In practice, judges are continually applying the existing rules to new fact situations and hence being able to keep pace with the changes of society. Firstly, approaches to statutory interpretation can put to the creativity and flexibility of law. Applying purposive rule, the court of the case of Royal College of Nursing v DHSS (1981) held that the Abortion Act 1967 aimed at preventing the mischief of back-street abortions where no me dical care was provided. Therefore, with the increase of medical technology, abortion became legal to be administered by nurses. (James, 2010)In addition, rules of statutory interpretation can ensure the willing of Parliament. judge cannot make law, which is the role of Parliament, however, they can and do try to give effect to Parliaments intentions by using statutory interpretation. For instance, in the case of R v Registrar General ex parte metalworker (1991), purposive rule was applied instead of literal rule due to the fact that the applicant was confirmed to be risky to his natural mother by a psychiatrist and Parliament could never have intended to promote such overserious crime. Consequently, the applicant was failed to obtain his birth credential (Jacqueline, 2010). Approaches to statutory interpretation provide opportunities for judges to apply to diametrical rules flexibly base upon the facts and the intention of Parliament. However, increases of flexibility and cre ativity of law may cause decreases of certainty and consistency. belong but not least, as two major aspects of the UK law, the interrelationship of the doctrine of judicial precedent and the rules of statutory interpretation are significant to the development of law. For example, in pharmaceutical Society of Great Britain v Boots Ltd (1953), there is a technical legal meaning of offer for sale. With the application to literal rule, the display of goods in a shop class shelf was held as an invitation to treat but not an offer to sell. This decision was followed in Fisher v Bell (1961). The court held that the display of product in a shop window was an invitation to treat and hence there was no violation of the Act. (James, 2010) conclusionAs a consequence, with doctrine of judicial precedent, previous cases can be applied to cases with similar facts in the future, whereas with statutory interpretation, unlike decisions can be made with choices of different rules depending on diffe rent facts. The synergy between these two aspects produces certainty, elasticity and withdraw space for the gradual development of law. In conclusion, although a degree of rigidity and instability efficacy occur in the progress of law development. Judicial precedent and statutory interpretation in combination can depute to an increased level of certainty, consistency, flexibility, and elasticity of the law, creating an appropriate space for a gradual development of law.Bibliography1.James, H., 2010, Learning statutory Rules2.Jacqueline, M., 2010, Unlocking The English Legal System3.E-lawresources, N/D, Internet Available from Accessed 11 /11/ 2012 4.Richard, A, P., 1990, The Problems of Jurisprudence5.Vaughan, B., 2010, Foreign specie Claims in the Conflict of Laws 6. Michael, Z., 2004, The Law-Making Process