Authority of precedent - statement of salmond, Business Law and Ethics

Authority of Precedent - Statement of Salmond

There writing on the authority of the precedent Salmond has stated as follows like;

"The importance of judicial precedent has forever been a distinguishing characteristic of English law.  However great body of the common or unwritten law is usually entirely the product of decided cases and so accumulated in an immense series of reports extending backwards within scarcely a break to the reign of the Edward the first on the close of the thirteenth century. However Orthodox legal theory there indeed, long professed to regard the common law like customary law and the judicial decisions as merely evidence of such customs and of the law derived there from.  Moreover this was never much best than an admitted fiction.  Further in practicing whether not in theory, such common law of England has been created through the decisions of English judges. Hence neither Roman law, conversely nor any of those modern systems that are founded upon it, hence allows such a degree of the authority to precedent.  However they see no difference of kind between precedent and several other expression of expert legal opinion. Therefore a book of reports and such a text-book are in the same legal category. 

Whereas they are both evidences of the law; that they are both instruments to the persuasion of judges; although neither of them is anything more. Moreover English law, such on the other hand there draws a sharp distinction between them.  So ever a judicial precedent speaks in the England with the authority; hence it is not merely evidence of the law as well as a source of it; and such courts are bound to obey the law that is so established.  Whether it seems clear there, that we must have attribute this feature of the English law to peculiarly powerful and the authoritative position that has been at all times occupied through English judges.  Regards the earliest times the judges of the King's courts have been such small and compact body of the legal experts.  So hence they have worked together in imposing and harmony their own views of law and justice upon such whole realm, and establishing thereby how a single homogeneous system of common law so. 

Obviously of this system they were the creators and the authoritative interpreters, and so they did their work within little interference either from legislation or from local custom.  Further centralisation and the concentration of the administration of justice in such royal courts gave to the royal judges a power and prestige that would have been unattainable in any other system.  However authority of the precedents was great in England it means of the power, and the skill, and the professional reputation of the judges that who made them.  However in England the bench has usually given law to the bar; a well in Rome it was the other method about in Rome there was no permanent body of the professional judges that capable of doing the work that has been done for the centuries in the England through the royal courts".

Posted Date: 1/21/2013 6:56:46 AM | Location : United States







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