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1.Explain the doctrine of precedentThe doctrine of Precedent (known as stare decisis 'to stand by what has been decided') is a legal principle that demands courts decide cases in the same way as previous courts have decided the same problem. Precedent ascertains consistency within our judicial system. When a new issue arises, the legal principles applied to resolve a problem (known as the ratio decidendi) then become the precedent to be similarly applied in subsequent cases. Precedent is not restricted to new cases; precedent is created when a previous decision requires expansion, or when the meaning of a parliament act is interpreted. Any part of a courts reasoned judgment that is not necessary to the decision (for example, recommendations to parliament) is known as obiter dicta ("things said by the way").Precedent provides regularity within our courts because Precedent means cases are decided in a similar manner. In order for this to occur, the precedents of higher courts are always binding on those below them providing the precedent is from a superior court that is in the same court hierarchy. For instance; a Precedent set by the Supreme Court of Victoria is binding on the Magistrates Court of Victoria. Similarly, precedent is binding on a court if the precedent comes from the same court, if that court is one that is bound to follow its own decisions. For example; the Court of Appeal is bound to follow its own precedent.
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. Explain the flexibility a court has to avoid following a precedent.The courts possess flexibility in avoiding following precedent. The courts can avert following precedents by distinguishing, overruling, reversing or disapproving previous decisions.A Court can avoid following a precedent by distinguishing a previous decision. Distinguishing a decision involves a scenario where there is an apparent binding precedent from a superior court, and a Court differentiates some material fact from the previous case that is different in the case being considered. Because circumstances are different, a court can avoid following precedent.A superior court can avoid following precedent by overruling a decision. Because the Judicial system attests that superior courts are not bound by the decisions of inferior courts, a superior court can overrule a lower court's decision and make its own judgement which then becomes binding.In reversing a decision upon appeal, a court can avoid following a precedent set in the same case by a lower court. As Superior courts are not bound by decisions of inferior courts, when the same case is taken on appeal to a higher court, the superior court may avoid following the earlier decision and make its own decision.A court can avoid following precedent by disapproving a decision made by a court at the same level in the court hierarchy. This is because not all courts are bound by the decisions of courts on its level and these courts reserve the right to reject decisions made by courts on the same par. . How effective are courts as law-makers?Courts are effective law makers, as court made law provides consistency and fairness, thoroughness, flexibility and continuing development. Conversely, Courts as law makers can be infective, as court made law is; restricted to cases before the courts, difficult to research and ex post facto. Court's are effective law-makers as court made law ensures consistency, since courts decide cases in similar ways as they have in the past. Court made law is effective since it is thorough - filling the gaps made by unclear Parliament legislation making laws less unambiguous and further understandable. The courts offer flexibility in the law making process, as court made law is continuously changing and developing through new cases. This means that court made law is effective as laws made through the courts are up-to-date with the values of society .On the other hand, courts are ineffective law-makers. Courts are restricted to making decisions relating to points of law brought up in cases which come before them and because the legal process is somewhat costly some unfair situations are left unrectified. The process of finding precedents can be an inefficient means of making and changing the law, as finding the relevant precedents can be time consuming. Court made law can be ineffective since it is made ex post facto (after the fact) where laws relating to a matter are made after an action takes place. This means that if one commits an action not punishable by law and an action is brought against that person, they can be held accountable on a matter of law, which never existed at the time they committed the action. Please note that this sample paper on precedent is for your review only. In order to eliminate any of the plagiarism issues, it is highly recommended that you do not use it for you own writing purposes. In case you experience difficulties with writing a well structured and accurately composed paper on precedent, we are here to assist you. Your cheap research papers on precedent will be written from scratch, so you do not have to worry about its originality.
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