Civil law is a body of laws that govern
how people and organisations relate to one another. It is predominantly
dedicated to governing relationships such as contracts which largely refer to
how one party relates to another (Rogowski, 1996). In civil cases, the main aim
of the aggrieved is to secure compensation for the wrongs committed. In a
typical civil case, the aggrieved party is referred as the claimant while the
one being accused is referred to as the defendant. Cases to do with defamation;
breach of contracts; and claims for compensation for injuries caused are some
of the examples of civil cases. A good example of a civil case is the case of Herbert Doyle v Olby Ironmongers Ltd 1969
where the claimant accused Olby of fraudulent misrepresentation prior to
entering into a contract (). The case was found in favour of the claimant.
Criminal law on the other hand governs
the behaviour of individuals in relation to the state. This law contains rules
that prohibit certain actions among the individuals in view of the fact that
such actions may be deemed to threaten or compromise the welfare of the public
(Jonathan and Carmel, 1999). In criminal cases, prosecution presents the
accusations while the defendants answer to the charges with the focus on the
criminal law being enforcing punishment to act as a deterrent for other
potential offenders as opposed to the goal of compensation in the case of civil
cases. A good example of a criminal case is R
v Stone Dobinson 1977 where the defendant was charged with gross negligent
manslaughter after poorly attending a patient in an incident that led to the
death of the patient (Kaplan and Robert, 1991).
Human right laws are preoccupied with
the protection of the rights of the individual and are directed at the state
and other public bodies demanding that certain rights of the individuals be
respected. Human right laws were adopted in the UK in 2000. A good example of
case related to human rights is the case
of Julian Asange who unsuccessfully sought to block his extradition to
Sweden claiming a violation of his human rights (The Guardian, 2011).
EU laws are laws legislated at the
regional level and are binding on all member states. The EU laws constitute
part of the UK laws and where any inconsistencies are observed between the two,
the EU laws take precedence (Emplow, 2011). This fact may find its basis in the
case of Factortame Ltd v Secretary of
State for Transport 1989 where certain inconsistencies were observed
between the provisions of the EU law and the local legislations (Emplow, 2011).
The EU legal provisions were upheld.
Common laws are laws through a continual
development of events as exercised by decisions of the courts over time
(Collin, 1993). They are commonly referred to as the case law with the rule of
precedence being the basis guide. Judges are expected to uphold their previous decisions
and where the same is not done, clear distinctions need to be drawn between the
cases.
The principle of stare decisis demands
that courts uphold their earlier decisions where the facts of the case in question
are similar to those of a case dealt with in a previous case. This principle
was developed in order to ensure the predictability and the stability of
decisions arrived at during litigations (Michael, 2007). There are several
advantages of using this principle. To start with, it helps in saving the
court’s time. A judge only needs to follow the decisions of an earlier judgment
instead of having to conduct an extensive legal research. It also helps bring
up the level of certainty where litigants can be reasonably confident that the
decisions upheld in a previous case with similar characteristics would be the
same (Tufal, 2011). This helps boost the levels of confidence in the court
systems. The principle also ensures that judges are guided properly. This guidance
helps ensure that their decisions are devoid of the sought of errors they would
be prone to if left to make decisions on their own. The principle also helps in
ensuring justice is done by disallowing arbitrary judgments (Tufal, 2011). The
impartiality of the presiding judges is also assured due to the fact that a
legally binding precedent may prevent judges from arriving at decisions based
on their personal sentiments. This principle also helps in developing the law
where the courts can effectively contribute to the creation of legal provisions
in areas not specifically provided for by the legislative bodies. By
consistently upholding stare decisis on such matters, the effect is the
development of comprehensive legal provisions (Tufal, 2011). The principle can
also be said to be fairly flexible where judges are allowed the leeway to
distinguish circumstances to justify their decision to deviate from the
decisions of an earlier judgment.
As good as the principle of stare
decisis may sound; it has a number of disadvantages. To start with, it may lead
to the upholding of an injustice where an erroneous judgment is upheld by
subsequent courts despite the fact that the judgment may have been wrong
(Michael, 2007). There may also be a large number of precedents in some cases
leading to confusion on which specific cases would best serve as a precedent.
The principle also poses the danger of lowering the process of passing
judgement into a mechanical exercise where judges may with time fail to
creatively approach the process of disseminating justice. There are certain
procedures that allow for the overruling of a precedent especially where such
upholding may be deemed to constitute an injustice (Michael, 2007). Where such
an overrule act occurs, it becomes unjust on the parts of the litigants who may
have instigated proceedings based on the judgments of previous cases. The process of development of law which in
many cases depends on the creativity of individual judges may also be limited
by the upholding to the principle.
On the whole, it would appear that the
principle is better off adopted than not with a focus to lessen the harmful
effects.
Collin, P.H., 1993. Dictionary of Law. 2nd Ed. Teddington: P. Collin
Emplow, 2011. European
Law / some important EU related cases / Factortame case (Online) Available
at: http://www.emplaw.co.uk/lawguide?startpage=data/03400806.htm (Accessed 2
November 2011)
Jonathan,
C., Carmel, M., 1999. Criminal Law. Sydney: Butterworths.
Kaplan,
J., Robert, W., 1991. Criminal Law: Cases and Materials. 2d ed. Boston:
Little, Brown.
Michael, S., 2007. Precedent, Super-precedent. George Mason Law Review, 363 (14)
Rogowski, R., 1996 Civil Law. New York: New
York Univ. Press
Tfal, A., 2011 Judicial
Precedence. (Online) Available at:
http://www.lawteacher.net/PDF/Judicial%20Precedent.pdf (Accessed 2 November
2011)
The Guardian, 2011. Julian Assange case puts extradition procedures in spotlight. (Online)
Available at: http://www.guardian.co.uk/media/2011/feb/07/julian-assange-extradition-procedures
(Accessed 2 November 2011)
No comments:
Post a Comment