Essays /

Note Essay

Essay preview

Q. 1 Explain the meaning and operation of the doctrine of precedent in relation to: (a) the English, or other common law, legal system; (6 marks) (b) ONE of the following:
(i) a civil law system;
(ii) a Sharia law system.
(a) Precedent in the English common Law
The doctrine of binding precedent, or stare decisis, lies at the heart of the English legal system. The doctrine refers to the fact that within the hierarchical structure of the English courts, a decision of a higher court will be binding on a court lower than it in that hierarchy. 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 normally follow the rule of law established in the earlier case. It is important to establish that it is not the actual decision in a case that sets the precedent; that is set by the rule of law on which the decision is founded. This rule, which is an abstraction from the facts of the case, is known as the ratio decidendi of the case. Any statement of law that is not an essential part of the ratio decidendi is, strictly speaking, superfluous; and any such statement is referred to as obiter dictum, i.e. said by the way. Although obiter dicta statements do not form part of the binding precedent they are persuasive authority and can be taken into consideration in later cases. The main mechanisms through which judges alter or avoid precedents are: (i) Overruling, which is the procedure whereby a court higher up in the hierarchy sets aside a legal ruling established in a previous case. (ii) Distinguishing, on the other hand, occurs when a later court regards the facts of the case before it as significantly different from the facts of a cited precedent. Consequently it will not be bound to follow that precedent. Judges use the device of distinguishing where, for some reason, they are unwilling to follow a particular precedent. There are numerous perceived advantages of the doctrine of stare decisis, amongst which are: (i) Time saving. In respect of potential litigants it saves them money in court expenses because they can apply to their solicitor/barrister for guidance as to how their particular case is likely to be decided in the light of previous cases on the same or similar points. (ii) Certainty. Once the legal rule has been established in one case, individuals can act with regard to that rule relatively secu...

Read more


1 18 19 2 3 5 6 absolut abstract accept act actual ad addit adher advantag agre agreement ah allah allow also alter although among amongst amount analog appear appli approach arab area argu aris articl asid assent authent author avoid b base basi becom begin belief besid bind bodi bound cannot capabl care case categori centr central centuri certain certainti challeng chang check cite civil code codifi collect come command common communic companion complet comprehens conclus conduct consensus consequ consid consider consist constitut contain contemporari context continent contract control convent convert counter counter-off court date deal dealt death decid decidendi decis decisi deduct degre delay deliveri depend deriv despatch develop devic dicta dictum differ direct disadvantag discrep discret discretionari disput distinct distinguish divin doctrin done dual due earlier effect either element emphasis enact english envelop equal error essenti establish estim even exampl exercis expens explain express extent extrapol extrem fact fill find fiqh fix fixiti flexibl focus follow forc form former found frailti fundament gave general generat give good guidanc hadith hand heart held henc hierarch hierarchi higher hoc howev human i.e ii iii ijma ijtihad import impos inact indic individu inform injustic instantan instruct intern interpret involv islam istihsan itjihad judg judgement judici judiciari jurisprud jurist knowledg known lack laid later latter law lead least legal legisl letter liabil lie life light like limit line litig long look lower made main make mani manipul mark materi matter may mean mechan mere modif moment money muhammad must necessari necessarili need never nevertheless new non non-materi normal note notic number numer obit object occur offer offere offeror one open oper opinion opportun oral order origin over-emphasis overrul overstep parliament part parti particular pay payment perceiv perform period perpetu person persuas place point possibl potenti power practic pragmat preced present previous price primari prime principl problem procedur process product prone prophet propos provid pure purport purpos q qiya qualiti quantiti question quran rather ratio reach realiti reason receiv recipi recognis refer refus regard reinterpret reject relat rememb repli report requir respect respond restrict reveal rise role rule run safeguard sahih said sale sanction save scholar school scienc scope second secondari secur see seen serv set settlement shari sharia shown signific silenc similar simpli simultan situat social solicitor/barrister sourc speak spite stare state statement status still strict strong structur subject superflu suppos system take taken taqlid teach telegram telephon telex tend term text theoret therefor thing third thought thousand thus time togeth tool tri turn two ultim un unambigu unanim uncertainti unchang unconstitut under-estim underestim undermin understand undu unjust unless unpreced unwil upon use usual various view wait way wherea wherebi whilst within without would written