“in Practice the Doctrine of Precedent Does Not Constrain Judicial Decision-Making; Activist Judges Can Always Creatively Interpret Previous Cases to Reach the Outcome They Desire.” Discuss.

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CLRI Question 1 “In practice the doctrine of precedent does not constrain judicial decision-making; activist judges can always creatively interpret previous cases to reach the outcome they desire.” Discuss. Introduction Common law tradition requires a particular approach to the discovery, interpretation and development of law. Judges therefore play an important and central role in common law. Although the declaratory theory is that judges do not make new law, It is inevitable that activist judges sometimes creatively interpret previous cases to reach the outcome they think to be more reasonable. To say that activist judges “always” do that so as to make the outcome they “desire” would not be very accurate and in fact unfair to the judges. Judges are supposed to follow the doctrine of precedent when applicable. Also, under the Human Rights Act 1998, all common law rules and precedents that are incompatible with Convention rights are potentially open to challenge, especially if those precedents relate to the interpretation of statutory provisions. Doctrine of precedent An important and distinctive element of English law is that the reasoning and decisions found in preceding cases are binding on later courts so as to promote certainty, clarity and consistency of legal principles. This is known as the principle of stare decisis, which is translated as ‘let the decision stand’. When a court makes a decision in a case, then any courts which are of equal or lower status to that court must follow the previous decision if the case before it is similar to that earlier case. Not all details from preceding cases would be binding, only the ratio decidendi is binding. Ratio decidendi is the principle of law on which the decision is based. On the other hand, obiter dictum is not binding, which is thing said “by the way” and is not strictly necessary for the
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