Common Law Reasoning

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Common law reasoning and institutions Study Pack

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6

‘The Judicial Practice of Precedent’ Adam Gearey

Staff and students of the University of London External Laws Programme are reminded that copyright subsists in this extract and the work from which it was taken. This copy has been made under a licence from the Copyright Licensing Agency of the UK (www.cla.co.uk). Any digital or printed copy supplied to or made by you under the terms of this licence is for use in connection with this course of study. You may retain such copies after the end of the course, but strictly for your own personal use. This reading was written for the Common Law Reasoning and Institutions study pack by Adam Gearey. Copyright © 2007 University of London. All rights reserved. This reading is for use in connection with this course of study. Except as provided by copyright law, no further copying, storage or distribution (including by email) is permitted without the consent of the copyright holder. The author has moral rights in this work and neither staff nor students may cause or permit the distortion, mutilation or other modification of the work, or any other derogatory treatment of it, which would be prejudicial to the honour or reputation of the author(s). This reading relates to the Common law reasoning and institutions subject guide, Chapter 6. Except as provided by copyright law, no further copying, storage or distribution (including by email) is permitted without the consent of the copyright holder. The author has moral rights in this work and neither staff nor students may cause or permit the distortion, mutilation or other modification of the work, or any other derogatory treatment of it, which would be prejudicial to the honour or reputation of the author(s). Reproduced by the University of London External Programme, 2007. Scanning authorised by Professor Wayne Morrison (designated person). Common law reasoning and institutions course (LLB, Diploma).

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University of London External System

The judicial practice of precedent
1 Precedent as a judicial practice
To describe precedent as a practice is to draw attention to the way in which judges interpret the law and act on the basis of those interpretations. Practices take shape within a culture that determines how they are composed. In this chapter we will thus direct our attention to the institutional context of judicial interpretation. This will take us towards an understanding of the hierarchy of courts. Court hierarchy needs to be seen as a factor that has influenced and determined the forms of the judicial practice. As Danny Nicol says: ‘Underlying precedent is an emphasis on stability, permanence and the wisdom of the past – the common law being conceived as an accumulation of such wisdom – combined with reverence for the higher courts as the ‘elders and betters’ of the lower courts. Precedent reflected the vision of law as an undertaking based on learning, acquired skills and experience. At the same time, since precedents exist in order to be applied, the system essentially empowered the higher courts to legislate. Presented as a restraint, precedent camouflaged law-making whilst in reality constituting law-making.’ Danny Nicol, Public Law 2006, Law and Politics after the Human Rights Act However, practices are never unitary. They are animated by tensions that reflect disagreements over the precise way in which the practice should be performed. A consensus shared between practitioners over the techniques and performances that constitute a practice reflects the stability of the practice as a whole. We will see that judicial interpretation is a relatively stable practice. However, there have been important disputes over its precise operation and in some important areas, notably human rights, debates are ongoing. Note that a thorough study of the judicial practice of precedent would analyse the interpretative techniques that determine the statements of...
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