English law maybe defined as a body of rules, created by the state binding within its jurisdiction and enforced with the authority of the state through the use of sanctions parliament, it is responsible for creating most of the law applicable in the u. k,such law is contained in acts of parliament or statutes,increasinly the content of much of this law is determined by the European union, and in this respect parliament does not have complete independence,since the human act rights act 1998,the e. u convention on human rights is directly enforceable in the English court.
In very simple terms the doctrine means that a judge who is hearing a particular type of case does not have to make a decision using simply his or her own knowledge of the relevant legal rules, but that similar previous decisions can be consulted to guide and justify the conclusion reached in the instant case. Whereby a judge in a lower court is aware of a decision of a higher court which sets precedent in an analogous case, then this previous decision must be followed, and it is this element of binding precedent which is distinctive within the English system. or example if a new statute has been created by parliament, which regulates the activities of estate agents and a dispute arises concerning the interpretation of one of the sections of the act, and a court case ensues. The case reaches the court of appeal, which makes a decision about the definition of an estate agent. In all future cases in which the definition of an estate agent is in issue, lower courts must observe this binding precedent, and apply the decision from the previous case in these situations.
Clearly if this system is to operate effectively, then it is essential that there is an efficient and reliable system of reporting court cases. Which is achieved through the work of the incorporated council of law reporting for England and wales, which produces the authoritative version of case reports (known as law reports) because of vast number of cases decided every year, not every case from every court is published in this way, but the system does provide judge with access to ecision of superior courts which will assist them in reaching a conclusion. by consulting both the official and privately published law reports, members of legal profession and judiciary are able to obtain valuable information about the way in which cases involving particular facts and legal principles have been decided on previous occasions. Because these precedents are regarded as binding, solicitors and barristers are thus able to give more accurate advice to their clients and the judge are able to follow the reasoning of previous courts.
They however advantages and disadvantages in the operation of a system of binding precedent. The doctrine enables judges to avoid having to solve the same legal problem more than once, and thus may save a considerable amount of judicial time and energy. A further advantage is that this system lends some degree of predictability to legal decision making. it is also of great importance to lawyers when attempting to advise their clients as to the likely outcome of litigation.
When a particular factual situation or legal principle has featured in a previous court case, the lawyer is able to assess the case before him or her in the light of the previous decision and guide the client according to whether the outcome is likely to be in the clients favors or not. a strict application of the doctrine is that the use previous precedents satisfies one of the requirement of justice ‘that people be treated alike in like circumstances.
If a case is held in high court in London, to which a precedent of the court of appeal is applicable, will, by the application of that precedent, be dealt with in the same way as a similar case being heard by the high court in Canterbury. The aim of the parties involved in a legal case before a court is to persuade the court that there is sufficient evidence to support the facts which the parties seek to prove. The party that can provide the greater weight of evidence to support their argument will win the case.
As a first step, in order for any court to resolve a legal dispute, it must investigate the facts of the case, and the evidence which is said to support those facts, the court cannot decide upon the legal rights and duties of the parties without establishing the order of events which led to the dispute and testing the evidence adduced to prove the facts. the legal issues which are selected for argument in court can determine which of the available facts are regarded as vital to the case.
The hierarchy of the courts is an important factor in the operation of the doctrine in practice. if the precedent is a decision of a court superior to it hierarchy then it must follow that precedent in the present case (it is bound by precedent). if also the precedent is one of the courts own previous decision, then subject to certain exceptions, it must follow the precedent. , if the precedent is a decision of a court inferior to it in the hierarchy, then it is not bound to follow the precedent, but may do so if it chooses.
It is also open to the superior courts in the hierarchy to reverse the decision of a court lower down in hierarchy during the course of the same case. This will occur if, for example, the high court has reached a particular decision in a particular case, but then the court of appeal reaches the opposite conclusion in the appeal in that case. The court of appeal and House of Lords also have the power to overrule the decision of a lower court, in later different case.
Distinguishing does not affect the validity of the precedent of the previous case. It is merely felt not to be relevant law on the given facts. The court of appeal is normally bound by its own previous decisions . this is known as the self binding rule, and means that unless one of the established exceptions to this rule applies, then the court of appeal will always follow its own previous precedents. The rule of precedent is in theory identical in the two divisions of the court of appeal.
That the court is bound by decision of the House of Lords. And by its own previous decision. Case law indicates that the court of appeal (criminal division) may depart from its own previous decisions if it is satisfied that the law was misapplied or misunderstand, and that power to deviate from the self-binding rule exists in addition to the exceptions set out. The high court is bound b y decision of those courts which are superior to it in the hierarchy, decision of the high court are binding on courts which are inferior in the hierarchy.