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Create a 4 pages page paper that discusses the doctrine of precedent can be considered both a blessing and a curse.
Create a 4 pages page paper that discusses the doctrine of precedent can be considered both a blessing and a curse. At the beginning of the thirteenth century, the concept of common law began to emerge. An internal system of courts was set up, with each community sharing the same laws. Judges traveled to the communities and followed the same rules, therefore making the laws enforced throughout common to all.
To provide consistency between the communities, if a judge was making a decision about a case, and there was a case of the same nature that had been decided by a judge before it, they would be resolved in the same way, with the same ruling.
That meant that the first judge to make a ruling on a particular case had made a law that judges in following cases (which were of the same nature) were obliged to follow. This still applies within the Australian legal system today. Courts are bound (within prescribed limits) by prior decisions of superior courts within the same State or Federal hierarchy. This is collectively known as the 'Doctrine of Precedent'.
Judicial law is a large part of the Doctrine of Precedent. It is named judicial law because it is a law made by judges, which is to be followed by judges in subsequent cases. Whether or not a case is binding, is determined by two things. whether the preceding decision comes from a judge that is in an equal or higher rank than the judge deciding the case (this given the Latin term stare decisis, which means 'stand by decided'), and whether the relevant legal principles of the preceding case are the same or similar to the case in question.
When dealing with precedent, judges and lawyers have to be able to break previous judicial decisions into two parts. the relevant legal principles that are binding, and the rest that is not binding. The part that is binding is given the Latin term ratio decidendi, which means 'reason for deciding' and the part of a judges decision that is not binding is given the Latin term the obiter dicta, which means 'incidental things said' and only has an incidental bearing on the case.
The Doctrine of Precedent gives judges the power both to reuse past decisions and rephrase past decisions. As a consequence of these powers, new laws can be made.
An example of a judicial precedent is the case Donoghue v Stevenson (1932). (Tufal, 1996) In which a decomposing snail was found in the bottom of a ginger beer bottle. The House of Lords found that a manufacturer owes a duty of care to the consumer to provide products that are safe. This case set a huge precedent for common law that is still relevant today, and the context of the word 'product' has been used not only in food products but also in cases including motorcycles and underwear.
There have always been, and still, are many critics who do not believe that judges should have the power to make laws. There are many convincing arguments both for and against the use of the Doctrine of Precedent in Australia.
