Doctrine Of Judicial Precedent Research Articles

Judicial precedent in the Anglo-Saxon legal family

An analysis of written historical sources that have survived to this day shows that judicial precedent is the oldest source of law. At different stages of the development of human society, the judicial precedent was to one degree or another the regulatory carrier of the relations that arose in it. This regulation is carried out from concrete to abstract, and therefore can occupy a special place in the legal system of society. This served to group national legal systems into legal families, which are united by the commonality of both the basic concepts, the structure of law, and the sources of law. Judicial precedent is an act of law-making, which is adopted in a certain order by a government body empowered to administer justice. Judicial precedent can be one of the main regulators of social relations, and have a secondary, insignificant role in the formation of sources of law in a separate legal system of a specific state. Thus, in the Anglo-Saxon legal family, court precedents traditionally refer to the main, dominant sources of law. The paper is devoted to the issue of the essence and role of court precedent as a source of law in the countries of the Anglo-Saxon legal family. It is established that the doctrine of judicial precedent is applied in England due to a historically formed legal tradition, and in the countries of the Anglo-Saxon legal family - due to the dominant influence of England on them in certain historical periods. In many ways, the doctrine of judicial precedent has demonstrated its success due to public legal awareness and the high level of professional skill of judges who lead the judicial system. It is they who form precedent law in general. The ratio of precedent and law, with the significant predominance of the former over the latter, led to the primacy of the judiciary over the executive. Quite often in the countries of the Anglo-Saxon legal family, a rule that derives from the law is unfit for practical application until it is explained by a judge. Thus, judges act as interpreters of laws, and court precedents, to a certain extent, as «commentaries on laws». The construction of judicial precedent has both positive and negative aspects. Even within the parent countries of the Anglo-Saxon legal family, not to mention mixed legal families, judicial precedents are applied differently, which indicates their adaptability, and therefore the ability of judicial precedent to be useful for Ukraine.

Paratexts in the eyes of the courts: George Jamieson’s translation of the Qing Code in the Hong Kong courts

ABSTRACT By highlighting the reactions of the court, this article examines legal translations and paratexts from the perspective of the special judicial reader to hopefully introduce new possibilities for legal translation studies. This article extends beyond a textual analysis of translations and specifically probes the intricacies of the application of George Jamieson’s (1843–1920) English rendition of the Great Qing Code in the Hong Kong courtroom. It is demonstrated that the mutual complementarity between his translation and paratexts is not always grasped by the court, which leads to an unnecessary clash between expert evidence and Jamieson’s opinions. Moreover, the incongruity between Jamieson’s translation and paratexts is amplified under the court’s gaze; this issue is further complicated by the English legal doctrine of judicial precedent, leading to both a judicial dilemma and concerns over the legitimacy of Jamieson’s interpretation.

Horizontal Effect and the Constitutional Constraint

This article offers a new interpretation – the ‘constitutional constraint’ model – of the duty the Human Rights Act imposes on the courts to give horizontal effect to European Convention rights through the common law. The model requires courts to develop the common law compatibly with the Convention, but only where compatibility can be achieved by incremental development. We argue that models requiring more than incremental development are unsustainable; that deep constitutional norms compel the constraint of incrementalism, which is preserved under the HRA; and that by virtue of section 2 of the HRA, Convention rights function as principles rather than hard‐edged rights in this context. This further undermines the idea that the courts must strictly apply Convention rights and cannot allow them to be overridden by non‐Convention factors. The final section explores the nature of incrementalism in this context and the impact of the model on the doctrine of judicial precedent.

The judge and social law: jurisprudential policies in interpreting and making laws

Attempts to analyse the role of the judge in interpreting statute law. Looks at the traditional British rules of interpretation, presumptions and jurisprudential policy in the construction of statutes. Examines the dramatics change of attitude by British judges necessitated by European law and provides some thoughts on the interpretation and construction of enactments by judges. Continues by covering the judge’s interpretation of common law through the doctrine of judicial precedent, with regard to the hierarchy of the courts and persuasive precedents. Cites a number of case examples.

Law Reporting in Swaziland

The doctrine of judicial precedent forms an integral part of the general law of Swaziland. This doctrine would be unworkable without the publication of law reports. The following is an account of the Swaziland law-reporting process.The Kingdom of Swaziland, which regained its independence on 6 September, 1968, has retained the dual structure of laws and courts which it inherited from the British administration. In terms of this structure the traditional Swazi law and Swazi courts operate under the umbrella of the general law and the ultimate control of the general law courts.The country's general law is based on the Roman–Dutch law. When the British found that Civilian system of law to be well-established on their arrival in Southern Africa, they decided to respect it. However, many elements of English law were introduced. The doctrine of judicial precedent was one of them.Even though Swaziland shares with South Africa (including its “independent homelands”), Botswana, Lesotho, Namibia and Zimbabwe a mixed general legal system which resulted from the interaction between the Roman–Dutch Civilian law and the English Common law, its general law operates independently.

An Historical Perspective of Law Reporting in the English-Speaking Caribbean: A Case for Regional Law Reporting

The doctrine of judicial precedent is the cornerstone of the English legal system. Therefore, the publication of law reports, through which the development of case law can be followed, is of vital importance. Today, over 350 years since the reception of the English legal system in some Caribbean territories, the law reports published in the region do not exceed 150 volumes, most of which have been issued during the twentieth century in the larger territories of Guyana, Jamaica and Trinidad and Tobago. This dearth of primary legal materials has serious implications for legal education in the West Indies, and for the practice and development of a West Indian jurisprudence.

The Doctrine of Judicial Precedent in Scots Law

Journal Article The Doctrine of Judicial Precedent in Scots Law Get access Smith T. B.. The Doctrine of Judicial Precedent in Scots Law. Edinburgh: W. Green & Son, Ltd., 1952. Pp. xii, 115. Albert A. Ehrenzweig Albert A. Ehrenzweig Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 2, Issue 2, Spring 1953, Pages 255–258, https://doi.org/10.2307/837311 Published: 01 April 1953