Judicial Precedent Allows Judges Free Reign In Creating New Laws

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1500 words


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“Judicial precedent allows judges free reign in creating new laws, both good and bad” . Using legal authorities, assess the validity of this statement.

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Assignment Solution


In the United Kingdom, there is no one source of law that prevails, rather, the principle sources of laws are Legislation, Statutes, Common law and the law from European Union. Another significant source of law that prevails in the legal system of the United Kingdom is Judicial Precedent. Judicial Precedent is a kind of source of law wherein the judges looks back at the past decisions in order to support their present judgments

Mainly, in the present paper, an attempt is made to analyze the scope of Judicial Precedent and whether it allows judges a free reign in creating new laws, both good and bad. To initiate, it is first important to understand what Judicial Precedent is?

Judicial Precedent

Judicial Precedent is a term wherein the judges while deciding the cases look back at the pre-decided cases which are of similar factual situations and follow the decisions of such pre-decided cases while pronouncing the judgments of their current cases. Thus, the decisions of the pre-decided cases become the source of the law in the current legal structure. The principle of stare decisis et non quieta movere is the origin of the concept of Judicial Precedent. It simply submits that the judges must ‘stand by the decided matters’.

However, there is a proper framework upon which the principle of Judicial Precedent work and is based upon the hierarchical structure of the courts.

Working of judicial Precedents

A judicial decision is considered to be a precedent when the judges take heed of a past decision and apply the decision on the current case mainly because the facts of both the cases are of similar nature. When the past decision is applied, then it becomes Precedent for the current decision. Normally, the inferior courts must follow and are bound by the decisions of the superior courts. 

In the United Kingdom, the highest court of law is the European Court of Justice followed by the House of Lords (HoL). The decisions by the higher courts are binding on all, the lower courts. The court which is inferior to HoL is the Court of Appeal (Civil and Criminal Division) (CoA) and is bound to follow the decisions of the HoL and the European Court of Justice. Further, the CoA is also bound by its own decisions. Then come the High Court, which is bound to follow the decisions of the higher courts

However, the concept of Judicial Precedent may, at times, results in unjust decisions and the situation of conflicts. It is now time to analyze as to how the concept of Judicial Precedents has results in making good and bad laws.

Judicial Precedents has resulted in making good and bad laws

The fundamental of Precedent is very helpful for the judges who base their decisions by taking heed of the pre-decided cases which have similar factual situations. However, this has many times resulted in great hardships and at times, helpful. 

In United Kingdom’s, it has been observed amid 1898-1966 that the HoL were not reluctant in following their own previous decisions thereby making the law more consistent. However, in 1966 this approach was found to be inappropriate as it results in making hindrance in the proper law development. The Lord Chancellor has submitted that the continuous application of the precedents will result in causing injustice and thus HoL must deviate from its past decisions whenever it feels appropriate.  

Normally, the HoL follow past decisions unless the past decisions are not just, and its applicability in the current scenario results in causing injustice. In R v Caldwell [1982], the defendant set fire to the hotel from which he is sacked in order to destroy the property.  The defendant was charged not only for destroying the property but also causing danger to the life of the guests.  Lord Diplock negate the defence that the defendant was drunk and charged him for the offences caused. In Elliot v C [1983], a minor girl set the neighbours shed on fire but does not intend to do so. Considering the unawareness of the girl, the HoL acquitted her against any charges. But, later by applying Caldwell case, the girl was charged. In R v G [2003] it was held that the defendant must be charged considering their understanding and age and must not follow the objective test always. The courts were reluctant in following their own Precedent. The decision in R v G case was contrary to the above two cases. Thus, the HoL was willing not to follow by judicial precedents, however, making it difficult for the judges to decide as which Precedent to be followed.

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