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The English Legal System Is Based On The Age Old System Of Precedent, Which Can Be Strict And Inflexible.

1415 words - 6 pages

English Legal SystemThe English Legal System has slowly been evolving over time and can be traced back as far as 1066. Certain characteristics help to distinguish this law system from any other, such as the law of precedent. Throughout time, a specific court structure has matured and a form of hierarchy is held between the different courts. Through the doctrine of binding precedent, the decisions of the superior courts are binding on the courts, which are below it.In order to complete this essay successfully, the relevant advantages and disadvantages of the law of precedent need to be distinguished to find out whether this law is strict and inflexible as the title suggests. As with any law or theory, individual persons will have their own ideas and attitudes towards it.The doctrine of precedent states that a decision made by a court in one case is binding in other courts, in later cases involving similar facts. Therefore, past decisions must be followed in subsequent cases, irrespective of whether the courts in those subsequent cases agree with them or not. Precedent is the basis of the common law, but even in non-legal groups, the idea of precedent is strong, and many social groups apply informal rules based on the way things have always been done. A well-known example of precedent is the case between Donoghue v Stevenson (1932) AC 562. Where judges do not follow precedent, uncertainty within the law system is created, this can be seen in the case of Lewis v Averay (1971) 3 A11 ER 907, CA.The system of precedent relies upon two important components; these include law reporting and a hierarchical court structure. Law reporting helps to keep an accurate and comprehensive collection of the main decisions of the superior courts, which can be accessed, quickly to all who may need them. The court structure allows for control and organisation within the English legal system. Without the court, hierarchy there would be a decline in certainty and control. The civil court structure is as follows:Ratio decidendi and obiter dictum are two important features of precedent, which are taken into consideration when a judge has to make a decision in court. The ratio decidendi of a case is the principle of law on which the decision made by a judge is based. The judge may go on to surmise about what his or her decision would or might have been if the facts of the case had been different. This is an obiter dictum ('something said by the way') and is also known as a persuasive precedent.The initial advantage of precedent is its convenient timesaving device. If a problem has already arisen and been solved in a certain way it is easy to reach the same conclusion without too much reconsideration. Precedent brings consistency to the English legal system, in that two cases with similar material facts will be treated in the same manner. No legal system can be perceived as fair unless everyone receives equal treatment. Predictability allows lawyers to advice their clients...

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