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Essay / Research Paper Abstract
This 7 page paper is written in two parts. The first explains the doctrine of binding precedent, also known as stare decisis. The second part of the paper looks at the strengths and weakness of common law as seen in English law. The bibliography cites 10 sources.
Page Count:
7 pages (~225 words per page)
File: TS14_TEbindpre.rtf
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Unformatted sample text from the term paper:
stand (Ivany, 2000). This is the concept of the decisions already made by the courts needing to be respected, with binding precedent being the way the authority of the
higher courts is imposed on the lower courts. Where a decision has been made in a higher court lower courts are bound by that decision, meaning that lower courts must
find a case of similar facts in the same way (James, 1996). This is the basis of common law and gives a type of continuity as the decisions made
look to past decisions. In this the UK is unlike the continent were former cases are persuasive but are not binding (Weatherill and Beaumont, 2000). When a case is heard
the judge needs to look at former decisions as well as the law and find in line with these former cases if the facts are similar. It may be argued
that as well as creating consistency this is also good for the legal system as it allows the parties a good idea of how a case may be decided and
limit frivolous cases as well as protecting the separation of the powers by preventing judges form effectively making law(Thompson, 1998). The departure may occur where there different facts or where
there has been a change n the law applying to similar cases. The way that the decision is made is by reference to ratio decidendi (Cownie et al, 2003).
Ratio decidendi is the way that that the judge must make the decision. The law comes from several sources; statutes, the custom and case law, which is common law. It
was in the middle ages when the case law began to mount up and were already being recorded allowing them to be referenced (Cownie et al, 2003). When applying
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