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Common Law Reasoning Essay

  • Submitted by: anonymous
  • on October 20, 2013
  • Category: English
  • Length: 2,502 words

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Below is an essay on "Common Law Reasoning" from Anti Essays, your source for research papers, essays, and term paper examples.

"Precedent is conservative. It favours the status quo. Precedent slows down the pace of change in a legal system. In a world where things are constantly in flux, where things are always changing and where the pace of change seems ever to increase, the very advantages of precedent can thus be a disadvantage."

Discuss.



A precedent is a judicial decision which contains in itself a principle. English Law is based on a doctrine called binding precedent. The fundamental principle on which the doctrine of precedent is based is known as stare decisis – let the decision stand. Any previous decision of a higher court is binding on judges in lower courts, unless there are reasonable grounds for distinguishing the case on its facts. The doctrine does not only have a vertical effect. It also has a horizontal effect i.e. some courts are not only bound by the decisions of superior courts but also by their own previous decisions.

The House of Lords stands at the summit of the English Court structure and its decisions are binding on all courts below it in the hierarchy. With regards to the horizontal application of the doctrine, it may be stated that the House of Lords was bound by its own pervious decision until 1966. This practice was established in the mid 19th century and reaffirmed in the London Street Tramsway v London County Council in 1898. The rationale for this was that the decisions of the highest court in the land should be final in order to maintain certainty in the law and to put an end to litigation. However after increasing criticism the House of Lords freed itself from the self imposed restraint by a practice statement from then Lord Chancellor, Lord Gardiner. He stated that the House of Lords would in future regard itself free to depart from its previous decisions where it appeared right so to do. The practice statement contained the reasons for freeing the House of Lords; in the interest if justice and to allow proper development of the law, in...

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Common Law Reasoning. Anti Essays. Retrieved December 19, 2018, from the World Wide Web: http://parimatch-stavka7.com/free-essays/Common-Law-Reasoning-529922.html


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