Judicial precedent ?

Question

Ive been set a lovely question for over xmas for college at which im doing a law degree and its all about Judicial precedent ? If you are able to help a girl out Please do >
" In practice the doctrine of precedent does not constrain judicial decison making : activist Judges can always relativly interpret previous cases to reach the outcome they desire ?
DIscuss ...........................

Come on Help us out

Im in the UK

Ist year foundation law degree student only been studying for 3 months

Answer 1

It's certainly frowned upon for judges to decide what the law is, although to an extent they have that responsibility. Certainly, especially with advances in technology, case precedent can be significantly different from the case before a judge, to the extent that a new decision is necessary. Whether to follow, distinguish or over-rule a precedent is the issue; judges can take advice from someone more specialised than themselves if necessary, but the decision is theirs. It's this flexibility which makes the position of judge necessary; if it were no more than following rules blindly, a computer could do it. It is true, however, that should a judge so desire, he/she can bend or stretch interpretations to suit their own ideas as to which way a judgement should go. Judicial precedent is therefore a double-edged sword.

Feel free to quote; you owe me a bottle of Hobgoblin if you do!

Answer 2

Hi, Hope the studies are going well and you are enjuying the course.

Some excellent answers already, however you need to think about WHAT is being asked of you and you need some examples.

What is the role of the judge? He is there to implement and interpret the law, the will of parliament as is. The issue here is what happens when it is recognised as bad law?

Take the example of Caldwell recklessness, this was overturned in R v G and Another [2003]. (Sorry, I don't know the full citation.) This is where two boys set fire to some boxes, the fire spread causing £1 million worth of damage. The case for criminal damage the prosecution brought rested on the ruling in Caldwell.

Their Lordships said no because of the age of the children. The court ruled that the youngsters could not reasonably be expected to forsee the consequences of their actions and overruled the Caldwell precedent.

One should be mindful that sometimes, judge made law is helpful to over rule bad law, it is a matter of waiting for the right case to come up. R v G and Another is a classic example.

Hope this helps and gives some food for thought. Merry Xmas

Answer 3

I'm assuming that you're in the states, and I'm not, but over here some "written" laws occasionally can't solve the problem at hand. Then a judge has to make a "call" and explain why he reached that conclusion. Later cases of the same dilemma can be referred back to the precedent, or the new judge in the new case can reach a completely different conclusion, if he wants (he may then be required to justify his own conclusion and why the precedent does not apply in this case).
Judges are only human, too. And yes, the question implies that the "activist" judge may make decisions based on his own morals and prejudices, rather than the Law of the Land.

Answer 4

You are studying law and are unable to answer such a fundamental common law doctrine question?
I would start by saying that most judges are NOT activist and ARE in fact trying to do what is equitable, thus they have the precedent to look at to make an unbiased decision. There are MILLIONS of cases that strictly follow precedent. Pick a couple and point out how precedent was followed.
Then note that there are SOMETIMES activists judges who ignore precedent, or construe it so narrowly as to be not binding at all.
Demonstrate how these judges are often not successfully, because their decisions get overturned, or overshadowed by legislative response.

Answer 5

In English law, a judicial review is an action brought in the High Court to review the decisions of lower courts, tribunals, and administrative bodies. Following the hearing two types of precendent might result; binding precedent or persuasive presedent. Persuasive precedents include (1) Courts lower in the hierarchy overturned on the facts of the case rather than a point of law; (2) Obiter dicta statements and (3) A dissenting judgment. Binding precendent is where a point of law or practice is clarified. The advantages of judical review precedents are certainty, consistency and fairness: Disadvantages; rigidity, complexity, Illogical distinctions and slowness.

Answer 6

In your jurisdiction, which follows Common Law, you make your own rulings in each case, but each case can be cited as a precedent for a similar case in the future. Consequently, the mere fact that a precedent has been established does not limit the judge to decide a particular case in one fashion or another. For as long as there is reasonable basis for his conclusions and rulings, then he can disregard precedents for all he cares.

Answer 7

This is a misleading and seriously floored statement. you will need to research the areas of the golden rule and the mischief rule. they should be in your textbooks! but bear in mind that to answer the question fully you should mention the following topics;

Lord Denning and his continuous "radical " judgements and his attempt to change the law through interpretation ( almost all of these were overruled by the house of lords)

Judges believe in the principles of the legal system. this dictates that in england and wales it is not for the judiciary to change the law or move it forward- but it is for parliament.

without a strong tradition of precedent the criminal courts will have no stability and one needs certaintity.

hope this gives you a few ideas, just concentrate on the mischief rules etc.

good luck