Law in a Management Context
Outline and critically assess the system of judicial precedent in modern English Law
Introduction
The assignment will be discussing and assessing the system of judicial precedent in modern English Law and the providing of its outline as well as reflections with regards to the precedent of the law, critical based in order not to missed out on something important in terms of understanding and awareness of the modern English law and how it can be adopted and executed from within such legal actions.
Discussion
There has been precedent of English law but there has been a problem that have occurred in early centuries and that was the producing of a system that can be certain in its operation and will have to be predictable in such outcomes. Thus, too many judges were being incompetent; acquiring their positions only by virtue of their rank in society, standardized procedure slowly emerged based on the system as the ratio decided of each case will bind future cases on the same generic set of facts both horizontally and vertically. There has been highest appellate court in the UK, the House of Lords as the judicial members of Law Lords and its decisions are binding on every other court in the hierarchy which is obliged to apply its rulings as the law of the land (Cross and Harris, 1991).
Moreover, there can be influences of the English law such as the following:
Britain exported its legal system to the Commonwealth countries during the British Empire, and many aspects of that system have persisted after the British withdrew or were expelled. English law prior to the Wars of Independence is still an influence on United States law, and provides the basis for many American legal traditions and policies.
UK, into its international obligations has been formally incorporated into English law before the courts are obliged to apply supranational laws. For example, European Convention on Human Rights and Fundamental Freedoms has been signed during the year 1950 and that; UK has allowed individuals to make complaints to the European Commission on Human Rights since the year 1966. Thus in such in principle, every time certain citizen sues another person or body, the court would have to apply the Convention and the decisions of the European Court of Human Rights. Similarly, UK remain strong international trading nation, international consistency of decision making is of vital importance, strongly influenced by Public International Law and the modern commercial treaties and conventions regulating shipping.
Critical Assessment
For critical assessment, precedent of modern English law involves an ideal assumptions of the language use and its effectiveness as there can be about common law upon its creation beyond uncertainty and can be in conflict with the constitution and how the legal decisions of European Court of Justice are becoming binding on UK courts and the consequences of Human Rights Act 1998. The doctrine of precedent has important advantages as well it also has considerable disadvantages and may be producing some chaos in the same time, practice of binding precedent within the court hierarchy and the discretion of judges to make law in the English Legal System. Indeed, doctrine of precedent in the context of the English legal system means the judges in the courts make the rules for a particular case before the courts given the facts of the case in a given area of law. Thus, if same cases arises they use the same rules or reasons they use to make legal decisions. In the English legal system the precedents of the higher courts are binding on lower courts and the court structure is hierarchical. There produces to some degree, the reduced role of precedents in the English Legal system in the present times and also produces some destabilizing effects on existing legal practice. However, it has to be said these changes are evolutionary and did not produce chaos within the existing English Legal System and has been incorporated in to the English Legal system and the Legal system is functioning in UK albeit the reduced role of doctrine of precedents within the UK Court structure (Cross and Harris, 1991).
Furthermore, the House of Lords plays a vital rule into the modern law of English, as there gave to the doctrine of precedents, the discretion not to follow their own previous precedents and can depart from previous precedents of particular cases or classes of cases even though they don’t depart frequently Also, doctrine of precedents are not a mechanical process but a creative one and one must not underestimate the judges to make law within the English Legal System given the discretion of judges. This ability to make law my judges may be in conflict with the constitutional power of courts within the overall English legal System and in that sense the doctrine of precedents in practice may be a source of chaos or a source of destabilizing effect on the legal system. In effect, doctrine of precedents may be in conflict with other sources of law like legislation or constitution due to the discretion of judges and the way they interpret the cases before courts and the rules of interpreting may produce conflicting rules within the court hierarchy and there fore one can argue the doctrine of precedent on the one hand produces certainty due to the prediction of outcome of a case given the application pf previous rules applied to a similar case however due to discretion of judges to make law and over rule precedents and conflicting rules may also produce uncertainty. However, it is necessary for any system of law to have a degree of flexibility, and to the extent that law is flexible it cannot be certain, and vice versa. The courts, particularly the House of Lords, must therefore always balance the need for certainty against the need for flexibility in any particular case. The system allows for new rules to be established and old rules to be adapted to meet new circumstances and the changing needs of society. Where a precedent is considered to be particularly valuable its scope can be extended in later cases: conversely, where a precedent is felt to be defective, its scope can be restricted. Moreover, the system might depend on litigation for rules to emerge. As litigation tends to be slow and expensive the body of case-law cannot grow quickly enough to meet modern demands, there argues that, House of Lords should be financed at public expense, as it is inequitable that the law should be developed or clarified at the expense of private litigants.
“The standard of justice in a particular jurisdiction, and certainly in mine, continues to depend primarily upon the quality of its judges and their ability to find the facts so as to divine where the truth lies or, in a jury trial, to control the trial and sum up the issues in a way which assists the jury to perform their role. In addition, in common law jurisdictions like ours, the ability of the judges to develop the substantive law is of great significance” (Lord Woolf, 2003 in the, 5th Worldwide Common Law Judiciary Conference). Recognizing that, ‘judiciary is best equipped by experience to speak with authority on legislation. In the case of legislation which arguably infringes the rights of individuals, the judiciary can at times identify a means of mitigating the consequences of what is proposed’(Lord Woolf, 2003 in the, 5th Worldwide Common Law Judiciary Conference). Aside, access to justice is essential, to properly receive justice, judiciary must no longer be passive but be prepared to promote the resolution of disputes, have to be proactive in directing litigants to the correct forum in which to resolve disputes. However, the fact that, “new rules are in understandable English may not be a seismic change, it is a significant change because it is signpost to the new contemporary role of the judge. There necessitates judges being given and exercising greater discretion, to determine: in what order to resolve the issues; the evidence which shall be called; how issues are to be proved and the costs which it is appropriate to incur in resolving the dispute and the exercise of discretion should not be readily interfered with on appeal to be self-restraint.
Reflection
For reflection, adhering to the notion that there is critical truth regarding the common law in such judiciary precedent of the modern English law as of today as being proactive and is not reactive, as responding into challenges that they face in administering justice. The need to be aware and apply English into such fundamental role of judiciary upon the promotion of a fair society and that respect should be high and that the judiciary deserves also the underlying respect. Thus, the courts would not give advisory declarations and that word of rights has to be implied into the recent procedure rules. Thus, there will be situations where it is appropriate to do this, but others where it is not appropriate and for one, legislation will have to be in clear position as incurred as there takes action legally about the law.
Conclusion
Therefore, the judiciary precedent of modern English law will affect effective situations of today’s society, mostly in the field of education and professionalism practice in which that the public body whose actions are being challenged. Then, the position of individual making the challenge also has to be taken into account, the change involved in moving from jurisdiction where the courts enforce public duties to one where the courts are required to enforce public rights which is an important virtue to follow. There has to be better government and better legislation for instance to preserve the best in into the English precedent systems, making changes necessary to ensure that judiciary continues to be capable of meeting contemporary challenges thus, the ample need to make clear of continuing quality of services provided by the presence of English as a medium for everyone’s communication as properly manifested and realized into the law areas.
References
Cross, R. and Harris, J.W. (1991). Precedent in English Law. Clarendon Law Series. Fourth Edition, Oxford University Press
The 5th Worldwide Common Law Judiciary Conference (2003), Lord Woolf: The Lord Chief Justice of England and Wales Current Challenges in Judging Sydney, Australia 10 April 2003 http://www.dca.gov.uk/judicial/speeches/lcj100403.htm
The Outline
I. Common Law- English Law
II. Judicial Precedent (aspects and process)
III. House of Lords
IV. Rules of Precedent
V. Hierarchy of the courts
VI. English Doctrine of Precedent
VII. Position of judges
VIII. Application and Effectiveness
Credit:ivythesis.typepad.com
0 comments:
Post a Comment