‘’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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The idea of binding precedent in the common law system is to enure fairness through consistency, to provide predictability in the law and thus reduce the need for litigation. The rule of binding precedent is that the legal rule established in a precedent will continue to be applied to subsequent similar cases until either another court decides that the case was incorrectly decided ,or for some other rea son cannot be allowed to stand, or until a court higher in the hierarchy overturns the decision, or until Parliament decides to change the law by passing a new Act of Parliament that overrules or alters the rule laid down by the court Cases can be distinguished on their material facts or on the point of law involved The doctrine of binding precedent is a limitation which the judiciary has imposed on themselves. It is not a rule of Parliament but a judicial discipline. Constitutionally it is for the legislature to make law and for the judiciary to give effect to that law. The judiciary are not elected representatives of the people and therefore lack legitimacy for law-making in a democratic society. However, there is amle judicial writing and scholarly discussion to conclude that in the English common law system the judiciary do perform a limited law-making function in incrementally developing the common law to ensure that it keeps pace with changes in social and economic conditions and remains sufficiently flexible to accommodate new situations. The extent to which any judge is prepared to innovate will depend on their view of the balance to be achieved between competing requirements of the common law. These are: The need for stability in the common law The need for certainty in the common law The need for flexibility in the common law The desire to do justice between the parties in the instant case The duty not to usurp (take over) the role

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