The house of lords legal power research--论文代写范文

51Due论文代写平台essay代写范文:“The house of lords legal power research”，这篇论文主要描述的是英国国家的主要权利都掌握在议会的手上，议会有着修改和制定法律的权利，在遇到相似案例时，会遵循着以往上级的先例来进行裁决，想要创造一个有代表性并具备说服力的先例，这需要考虑例如上议院等多方面的因素。

In English law the law making power lies with the parliament. However judges also make law by way of judicial pronouncement. Under the English legal system it is deemed that the decisions given by higher courts are binding on the lower courts. This principle is famously known as 'stare decisis' which means to stand by previously decided cases. The importance of this principle is that courts are bound to follow previously decided cases specially if the decision is given by a higher court. For e.g. the Court of Appeal is bound to follow the decision given by the UK Supreme Court (previously House of Lords).

It can also be said that nowadays judicial precedent has been laid down in such a manner that it will be more easier for judges to interpret the law and also to stay on the path of precedent which is now flexible enough to give judges the room to give fair and just judgment according to the demand of time.

All decisions at least create a persuasive precedent, the degree of persuasiveness depends on the position of the court in the legal hierarchy. For e.g. precedents from the Judicial Committee of the Privy Council is not binding since the Committee is not part of the normal hierarchy of courts in UK (because the Committee is comprised of up to 9 of the most senior judges, Lords of Appeal in Ordinary (or Law Lords)) .Other sources of persuasive precedents include courts in foreign countries, for example, the decision in (Eliason v. Henshaw).

Obiter dicta have formed law in many cases for example, in (Central London Property Trust Ltd. v. High Trees House Ltd) and Pinnel's Case.

There are three main reasons why persuasive precedents are not binding:

The first is that the doctrine of precedent in similar cases should be treated in the same way. This restriction does not apply with persuasive precedents.

The second is that there are a huge bulk of persuasive precedents, and it would be impracticable to follow them.

The third is that persuasive precedents are frequently not considered per curiam as ratio decidendi and even when they are, they are not usually considered. Therefore there is a greater risk that they will be considered ill and thus may be bad law.

Only points of law are binding. For example, in (Qualcast v. Haynes), it was decided that the 'precedent' that employers who failed to give instructions on the use of protective clothing were de facto negligent, was a question of fact and therefore not binding.

There are two main theories of precedent. The first of these is the declaratory theory, which states that the common law does not change - in each case the law is merely re-stated but not added to - the judges are declaring the law on the basis of past decisions.

The realistic theory is that they do - all principles must originally come from somewhere, and the abstraction of old principles is the creation of new law.

The declaratory principle states that law is not created, it exists within the judges, except where 'the former determination is most evidently contrary to reason; more if it be clearly contrary to divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared not that such a sentence was bad law, but that it was not law, that is, not the established custom of the realm, as has been erroneously determined.' - Blackstone.

In the 19th century, the judges generally adopted the position that they were not concerned with the outcome of their decisions, and that they did not make law, but merely interpreted them - 'It is the province of the statesman, and not the lawyer, to discuss, and of the legislature to determine, what is the best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only; the written from the statutes: the unwritten or common law from the decisions of our predecessors, from text-writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is best, in his opinion for the advantage of the community.' - Per Parke in (Egerton v. Brownlow ).

In modern times judges have showed only a limited reluctance to overrule what has been set before them, and usually only when it would be visible to their eyes that the law needs to be changed and only then following the circumstances many of the Law Lords now believe that the law should be developed according to the changing of circumstances in the society - for example the abolition of the marital rape rule.

The likelihood of a judge overruling or making new precedents depends on the degree to which it would fundamentally change the law, the need for justice, and the need to find a logical and merely a just solution following the changing circumstances of our society.

先例-实践中的PRECEDENT IN PRACTICE

上议院-THE HOUSE OF LORDS

It was first established in 1966 by a practice statement given by House of Lords that they were not bound by its own decisions. Their lordships regarded the use of precedent as indispensable. Their lordships nevertheless recognize that too rigid adherence to precedent may lead to unjust and undue restrict to the development of law. While treating former decisions of this House as normally binding and to depart from a decision where it appears right to do so.

This was followed in (Miliangos v. George Frank (Textiles) Ltd), which overruled the 1961 (Havana) case. This was done because the reason for the original decision is no longer applied. It did however follow the (same decision) of the Court of Appeal.

The House of Lords overruled itself in (Conway v. Rimmer) over (Duncan v. Cammell Laird & Co) , in (Vestey v. IRC) over (Congreve v. IRC), in (R. v. Shivpuri) over (Anderton v. Ryan). But in (Jones v. Secretary of State for Social Services) it was held by a 4-3 majority that a decision was wrong, but by a 4-3 majority that it should not be overruled.

In (R. v. Secretary of State for the Home Department (ex parte Khawaja)), it was said that to overrule a casethere might be a risk of injustice from the old precedent, and the proper development of the law would be restricted, and therefore the departure was the appropriate way to remedy the injustice. Following this it was said in (Fitzleet Estates Ltd. v. Cherry) that for the Lords to overrule itself there would have to be a change of circumstances that would make them to deviate from the old precedent.

法院上诉-THE COURT OF APPEAL

The Court of Appeal cannot overrule the House of Lords as of precedent, but tried to in (Morris v. Crown Office) (and later in (Miliangos v. George Frank Ltd.)), arguing that a Lords decision must have 'overlooked ... [or] misunderstood ... [the existing common law, and that the Lords decision was] hopelessly illogical and inconsistent', and directed the lower courts to ignore the decision. This attitude was overruled with great vigour, since it was clear that the Lords had not, as claimed, overlooked the existing common law.

(Cassell and Co. Ltd. v. Broome) the House of Lords said that the Court of Appeal could not overrule the House even if it was per incuriam, and in (Miliangos) it rejected the idea that the Court could now overrule on the grounds of 'cessante ratione cessat ipsa lex'.

However in (Young v. Bristol Aeroplane Co. Ltd) it was held that the Court of Appeal can depart from its own previous decision subject to the following exceptions:

If there are two previous decisions of Court of Appeal which contradicts with each other, then the Court of Appeal is free to choose from whichever it wishes.

If any decision of the Court of Appeal contradicts with the decision of House of Lords which was not expressly overruled by the House then the Court of Appeal is not bound by its own decision.

If any previous decision of the Court of Appeal is a per incuriam decision then the Court of Appeal is not bound by that decision.

The introduction of European element in the English Legal System has created two more exceptions and they are:

If the decision of the Court of Appeal is in conflict with the direction given by the European Court of Justice (ECJ) then it is free to depart from its own previous decision and follow ECJ.

If any decision of the Court of Appeal is in conflict with the decision of the European Court of Human Rights (ECtHR) then it is free to depart from its decision and follow ECtHR.

In principle there is no difference in the application of precedent in Court of Appeal Civil and Criminal Division. However the practice of precedent is more flexibly applied in criminal division as an individual's liberty and freedom may be at stake. However the court must show that the previous decision was misunderstood or a new circumstance has evolved which made its decision unsafe.

Decisions of House of Lords (HL) is binding in Court of Appeal (CA) where as the decision of the Privy Council (PC) has mere persuasive authority. In case of any conflict between the HL and PC decision then the CA is bound by the decision given by HL. However, under exceptional circumstances the CA may choose to follow the PC.

In (Davis v. Johnson) Lord Denning said 'It is said that, if an error has been made, this court has no option but to continue the error and leave it to be corrected by the House of Lords.

The answer is this: the House of Lords may never have an opportunity to correct the error; and thus it may be perpetuated indefinitely, perhaps forever.'

It still remains a question whether there is any practice of precedent by the courts or it's just something that the judges developed to show the people that there is certainty and consistency in law and if necessary they can do justice by bending it a little and by this they are also developing the law and refining it.

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