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The Foundation of Legal Precedent

   

Added on  2020-02-14

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What underlies the idea of precedent?
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QUESTIONDo you agree with this man’s view on what underlies the idea of precedent?Give reasons to support your opinion. The answer for this question should be between 300 and400 words. Bibliography are not included in the word count?ANSWERAfter studying the arguments of Dr. Adam Geary perspective and watching the video.Here is what, as per my understanding is right, Precedent is the primary and vital form or a partof providing justice as per human (especially Judges) understanding in common law. Up to someextent, I would like to agree with DR. Adam Geary that precedent is a culture of arguments andjudge’s argument with the help of precedent, a legal argument used as a reference. To solve adispute or reach a conclusion it is important to keep an eye on what happened in the past andreflects the current circumstances. Dr. Adam Geary emphasizes that one should look one morecases to have clarity on reality than just relying on precedent. In my opinion, both are important,and there is a need to find a balance according to the current situation. There are some caseswhich are entirely different from the past. “We have to restore the practice of precedent” says Dr.Adam Geary, well fair enough. But there should remain a balance so justice can prevail. Anotherissue according to Dr. Adam Geary is that “Do Judges make law on an Appeal which is bound tothe previous decision which reflects on law and decision making” and may be not applicable tothe current scenario. By providing an example of past cases he puts his case forward, humanrights laws were different previously as compared to the present circumstances. Quotes fromjudges in cases from 1966, 1996 and 1998 he says that House of the lord is bound by theprevious decision. Similarly, the court of appeal relies on previous decisions, the impact ofhuman rights and last but not the least Judicial law-making but under what parameters. Again, Iagree with some part that yes, the house of the lord, appeal court and other relies on a previousdecision to make, well that is exactly the parameter for judges to make judicial law. This practiceitself is the parameter for providing justice and judicial law making. In my opinion, it is right formajority situations, but in some instances, it is not applicable, in that case, basic principles ofunderstanding by judges are the right way to make judicial laws. Yes, parliament is the supremebody of law making and judges are secondary, but if a judge feels that he can make a law then itis his right to do so, the constitution gives him the power to do it. Moreover, Dr. Adam Geary
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