A critical analysis of recent Supreme Court of Appeal judgments that have deviated from the stare decisis principle Lizl Pretorius June 2012 Dissertation submitted in partial fulfilment for the degree of Higher Diploma in Taxation International Institute for Tax & Finance in association with the Thomas Jefferson School of Law Abstract The decisions and methodology used by the Judges in a higher court‚ such as the Supreme Court of Appeal is binding on the lower courts. It is therefore
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retrospective effect. Parliament makes the law‚ following a lengthy process‚ and then the judges must follow parliament’s decision. They must follow precedent of higher court judges. This is known as ratio decidendi. The doctrine of precedent is based on stare decisis‚ meaning to stand by what has already been decided. On the other hand‚ judges can be creative. For example‚ judges can use distinguishing to develop the law. This is where judges find significant differences between cases. This was seen in
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Judicial Activism Vs. Judicial Restraint The debate between Judicial Activism and Judicial Restraint really grabbed my attention. Judicial Activism and Judicial Restraint are two different ways to interpret the constitution and its laws. Both interpretations have their own strengths and weaknesses‚ which is why it is so hard to come to a final decision of which is acceptable and which is not (in most cases). While at the debate I didn’t realize how many cases have boiled down to these two concepts
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authority for the legal principle embodied in its decision. The common law has developed by broadening down from precedent to precedent. A judicial precedent is a decision of the court used as a source for future decision making. This is known as stare decisis (to stand upon decisions) and by which precedents are authoritative and binding and must be followed. In giving judgment in a case‚ the judge will set out the facts of the case‚ state the law applicable to the facts and then provide his or her
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concerns itself with the importance of case law. When cases are examined‚ the facts of the case are considered. More importantly‚ how the law applies to these facts is scrutinised. It is the latter that produces precedent‚ based on the maxim of stare decisis. Precedent can only operate‚ if the legal reasons for past decisions are known. The ‘reason for deciding’ or ratio decidendi‚ as a general rule is binding on all lower courts. It is important to distinguish between the different types of precedent
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INTRODUCTION: The doctrine of precedent‚ or stare decisis‚ lies at the heart of the English legal system. The doctrine refers to the fact that within the hierarchical structure of the English courts‚ a decision of a higher court will be binding on a court lower that is in that hierarchy. In general terms this means that when judges try cases they will check to see if a similar situation has come before a court previously. If the precedent was set by a court of equal or higher status to the court
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the lower courts. In common law legal systems‚ a precedent is established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. This is called “stare decisis” or let the decision stand. It provides at least some degree of certainty. This doctrine of precedent applies to all courts including the court of appeal‚ whose decisions bind all lower courts. The court is also bound by its own previous decisions
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using the common law tradition‚ courts will hear disputes that are brought before them. In doing so‚ courts consider themselves bound by how other courts of superior standing have previously interpreted a law. This is known as the principle of stare decisis‚ or simply precedent. Precedent helps to ensure consistency and predictability in the administration of justice with in the legal system. The cases we read stem from 19th century North Carolina Supreme Court opinions concerning violence against
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There is no concept so central to philosophy than Reason. It is reason that is the very focal point of all discovery and knowledge‚ for a philosopher to achieve any kind of enlightenment without the use of reason is impossible. Reason is‚ arguably‚ that which separates man from beast‚ that consciousness and ability to analyze and comprehend. It has been through reason that societies and governments have been created: our own through the reasoning of our founders utilizing the reasoning of John
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judgment. He expressed the opinion that the case Phillips(Inspector of Taxes) v Bourne “was wrongly decided”.Certainly Phillips(Inspector of Taxes) v Bourne had persuasive value for the Kiernan judgment and stare decisis is certainly a powerful maxim in a common law jurisdiction like Ireland. However‚ precedent cannot always be the singularly decisive factor in deciding a case. Hence why Henchy J. stated the opinion above. As Atkinson J. stated in his judgment
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