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Comment on the system of binding precedent in the English Legal System Free essay! Download now

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Comment on the system of binding precedent in the English Legal System

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Downloads to date: N/A | Words: 3500 | Submitted: 07-Jan-2008
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Comment on the system of binding precedent in the English Legal System

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The English Legal System is hierarchical whereby the decision of a higher court binds lower courts. The doctrine of binding precedent, stare decisis, is at the core of the legal system. The House of Lords is at the top of the legal pyramid and its decisions bind all lower courts, except on civil cases involving European law where the European Court of Justice is the court of last resort. Below the House, we have the Court of Appeal, and it is generally bound by its decisions. Next, there is the High Court, which consists of the three divisional courts, and the ordinary High Court. The hierarchical nature is further reaffirmed in the High Court where it is bound by previous rulings of both the House and Court of Appeal, and its own decisions bind inferior courts. All the above courts bind the Crown Court in turn, it does not form binding precedent and decisions can serve as persuasive precedent. This then leaves the County and Magistrate Courts. These courts, apart from being bound by higher courts, do not make any precedent be it binding or persuasive.

To comment on the system of binding precedent an understanding of binding precedent is required. The principle of stare decisis, came from the establishment of a centralized government in 1066 during the reign of William the Conqueror. The different customs throughout England were brought together and sifted to give a consistent set of rules. This gave rise to common law. When a new problem of law came before the courts the decision then formed a binding precedent for future cases. Over many years the system of common law based on binding precedent gave a hierarchy of precedent. Only the rule of law sets precedence. There are two main sections of a case first is the ratio decidendi. This is the rule of law and is the “statement of law applied in deciding the legal problem raised by the concrete facts of the case” . Second, is obiter dictum, that which is said by the way, it does not form part of the binding precedent serving as a persuasive authority. Over time the common law has evolved and we have a hierarchy of courts that we all know today. It is important to note however that common law is not the most widespread system as those countries that have a written constitution have a civilian system. And it is the civilian system that is found in the majority of countries.

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