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P3: describe how legal rules are created by precedent

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Kim todd

on 5 December 2015

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Transcript of P3: describe how legal rules are created by precedent

Assignment 2 Legal Systems
During Henry II reign (1154 – 1189) representatives of Henry were sent all over England to sit in the courts. This was called the General Eyre which means the journey. These representatives became judges and were called Justices of the Eyre. They reported back to Henry with the main happening inside the courts. These Justices then selected the best local laws all over the country and used them to create Common Law.
History of the Legal System
This history meant that decisions made by judges created a new law for future judges to follow. This means that if a case is very similar to a case that happened in the past the judge’s decision must be the same as the judge before him/her. Judicial precedent became an important part of Common Law. It is based on the Latin saying ‘Stare decisis et non quieta movere’ which stands for ‘stand by what has been decided and do not change the established’. The English legal system follow the rules of judicial precedent a lot more than most countries. This is also the reason courts must follow decisions made by higher courts or superior courts while appeals courts are bound by their past decisions.
Judicial Precedent
Persuasive authority is classed as a matter of precedent however it is not legally binding which means courts may use it as a reference and use it for guidance however they do not have to follow it. Persuasive authority may come from another court in a different country or a military court. Binding authority is a matter of precedent that is followed by all lower courts for example if a decision is made by crown court, magistrates court must follow it because it is a lower court.
Persuasive and binding authority
This is a Latin phrase meaning ‘reason for the decisions’. The ratio decidendi is the judgment at the end of the case and the explaining of the decision. It is where the court has to explain why it came to the decision. This is needed to set a precedent for other judges to follow. Obiter statements such as obiter dicta which is a Latin phrase meaning ‘other things said’ are comments made by judges which is not a part of the rationale and are seen and helpful and influential however it is not binding but may help as persuasive authority in aiding the lower courts come to a decision.
Ratio decidendi and Obiter statements
These are books that hold judgments and opinions from judges in courts. This report is used by other judges as a reference.
Law report
P3: describe how legal rules are created by precedent
Judicial precedent
Follow – facts of the case are very similar to a previous case which means that the judge would follow the precedent.
Distinguish – the facts of the case are very different to another case in the past which means the judge does not need to follow the precedent.
Overrule - the precedent was set in the lower courts so judges in higher courts can overrule it which in other words means that judges do not have to follow the precedent set by the lower courts judgment however overrules do not happen often because it weakens the power of the lower court.
Reverse - if the higher court believes the lower court misinterpreted the law the higher court can reverse the judgment however like overruling, this is not done often because it can weaken the lower courts power.
Practice statements – this is a way of allowing the Supreme court to not use judicial precedent if they believe it is necessary. It does not change the rules of precedent in the lower courts. The reason it is called a practice statement is because the Supreme court changes its practise.
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