Constitutional Principles and Australian Law
Added on 2020-05-04
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Running head: LAW SOCIETYLaw SocietyName of the StudentName of the UniversityAuthor Note
1LAW SOCIETYTable of ContentsQuestion 1........................................................................................................................................2Question 2........................................................................................................................................3Question 3........................................................................................................................................5Question 4........................................................................................................................................6Question 5........................................................................................................................................7Question 6........................................................................................................................................8Question 7........................................................................................................................................9Reference list.................................................................................................................................10
2LAW SOCIETYQuestion 1 The doctrine of stare decisis refers to the concept of precedent where the judges arepermitted to refer to previous decision while determine similar cases which has similar facts andcircumstances as the previous cases. The concept of stare decisis is because a hierarchy of courtsis essential for applying the doctrine as the concept itself states that the subordinate courts mayrefer to the decision made by the superior courts and to refer to the decision that has been alreadydecided1. The underlying principle of the doctrine is that cases that are similar by facts andcircumstances shall be decided in the same manner to maintain consistency, certainty, thus,ensuring fairness. As the doctrine rests on the concept that referring to previously decided cases shall ensurefairness, thus helping with the questions of certainty as judicial precedent is strictly followed.This certainty leads to fairness and consistency in case, which are similar to the previouslydecided cases. The fairness is essential as per the principle that every person should have accessto courts and justice2. However, there are certain limitations in which judges may avert precedentsuch as distinguishing. Judges may apply distinguishing if he/she is of the opinion that thematerial facts of the case are distinct from the previously decided cases that would otherwisehave set a precedent to be followed to determine the present case. This distinguishing made by the judges is often subjected to criticisms as most of thetimes; there is no proper justification for not following the previously decided cases, thus,resulting in uncertainty of law and dejecting the main principle behind a legal system that is1 Anderlini, Luca, Leonardo Felli, and Alessandro Riboni. "Why stare decisis?." Review of Economic Dynamics17.4 (2014): 726-738.2 Toth, Adryan JW. "Clarifying the Role of Precedent and the Doctrine of Stare Decisis in Trial and IntermediateAppellate Level Charter Analysis." Dalhousie J. Legal Stud. 22 (2013): 34.
3LAW SOCIETYbased upon previous decisions. The superior court may also overrule a decision to avoidprecedent where the court opines that the legal ruling in previous cases was not correctly applied.The existence of the doctrine is advantageous for the judges to avoid making any mistake whiledetermining the cases, which he might have made had he been left without any guidance. Theprecedent acts as guidance to the judges to make laws that are certain, consistent and ensuringimpartiality of the judges unless the precedent is distinguished for justified reasons. Question 2The Glorious Revolution of 1688 is one of such revolutions in the world that have left anineradicable impression in the history. It has a significant impact in the history of England wherethe revolution is accredited for ending the constitutional struggle between the Parliament and theStuarts during the 17th century. This revolution has led to the commencement of constitutionalmonarchy in England, which further led to the abolishment of the arbitrary and the illegalpowers of the kings forever3. The abolishment was followed by long cherished freedom andindependent that people of the country longer for years. There were rules that were formed which empowered the kings to rule as per the wishesof the people. This is called the glorious revolution as it gave constitutional and sovereignpowers to then people without shedding any blood. The circumstances that led to the origin ofGlorious Revolution go back to the Tudor period where the kings used to rule with the help offeudal lords who were powerful. However, as time passed, several events led to the decline ofthe power of the powerful feudal barons. 3 Lemmings, David. "Richard S. Kay. The Glorious Revolution and the Continuity of Law." (2016): 318-319.
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