Role_of_Judiciary

Question 2 The judiciary plays a crucial role in the development of common law, the following analyses highlight these roles: first, although the judges do not technically make laws albeit they do through the interpretations of statute law and the reinterpretation of the common law. Second, they contribute to the development, clarification and reform of the law. Historically the role of the judiciary in the development of the common law could be traced back to the time of King Henry II who reigned from 1154 to 1189. One of the reasons, why he was dubbed ‘father of the common law’ is that he established common law by creating a unified court system ‘common’ to the country through incorporating and elevating local custom to the national level, ending local control, eliminating arbitrary remedies and reinstating a jury system. Since then judges have developed from case to case primary legal principles in what is called system of precedent where lower courts are obliged to follow rulings of the higher court in previous cases. Precedent forms the basis of the common law –the doctrine of precedent is known as the doctrine of “stare decisis” which is Latin means “to stand by and adhere to decided cases.” That is within the hierarchical structure of the courts in England and Wales, the decision of the higher court is binding on a lower court. Basically, court hierarchy, binding precedent and accurate law reporting are important tools to the system of precedent. In order to assist with the interpretation of the statutes law, the judiciary have developed a number of approaches: the literal rule, the golden rule, the mischief rule, the purposive approach. All methods slightly differ and the judiciary do not always agree on methods to interpret the law, but once interpretation is established, it may set a precedent for later cases. The importance of accurate law reporting in the system of precedent cannot be over emphasized, it enables for legal principles to be collated, identified and accessed. There are many sources of law reports: Year Books (1275-1535), private reports (1535-1865), modern reports (1865 to present) to mention a few. However, not every court case sets a precedent. The facts of a case report can be divided into two categories: Ratio decidendi, Latin means, the reason for the decision.  A ratio decidendi,  is a platform which the court used to ruling in the way that it did every case brought before the judge binding precedent. The court of Appeal decision,  (Carlill v Carbolic Smoke Ball Co Ltd (1892)), ruled that there was legally enforceable agreement. Obiter dictum, Latin means ‘along the way’ does not form part of the binding precedent, but persuasive authority that might be considered in later cases. Arguments for the doctrine of precedent include consistency and fairness in the law, certainty, flexibility and efficiency. Lord Mackay, former Lord Chancellor argues that a rule of law based on the system of precedent provides certainty, consistency and uniformity. Things are constantly changing in this day and age; therefore, the benefit of precedent can thus be a weakness by allowing law to be predictable. The disadvantages of doctrine of precedent: uncertainty, unconstitutionality and fixity.