Posted at 12.13.2018
The doctrine of precedent performs a essential role in the English legislation because of common legislations custom which is the main source for English law. However, United kingdom people believe there is little or nothing important than Westminster Parliament, because Parliament can determine anything with a simple majority and it is the supreme legal specialist which creates or ends any regulation. The idea of Parliament sovereignty is very powerful in creating the democratic contemporary society and is also more complete in Great britain than pretty much else in the world. However, in this article I am going to discuss the role of the doctrine of precedent in the English law where in fact the notion of Parliament sovereignty confronts to the practices of common regulation system. Moreover, I am going to show how EU law does affect the Parliament sovereignty in England. Finally the conclusion of the whole matter will be provided and summarized.
The doctrine of precedent term is used in common legislations tradition countries. Common regulation is something of legislation that prevails in Britain. The name is derived from the medieval theory that the law given by the king's courts displayed the normal system of the world, instead of the custom of local jurisdiction that was applied in local or manorial courts. (Malika M. 2010) Later consequently of British colonization, common legislation was adopted in many countries such as Australia, India, Hong Kong, and East Asia. In common custom countries the cases are resolved based on the previous cases - precedents, which show the rule of stare decisis, or also called the doctrine of precedents this means decide similar instances similarly. Moreover, cases are the main sources of English legislations in decision making process; hence the courts will resolve problems more rapidly because they can just apply precedents to subject by using this database.
The process of the doctrine of precedent wasn't always applied totally. In medieval Great britain, courts investigate earlier instances for assistance nonetheless they could reject those which were considered a poor law. Moreover, due to the fact that there is too little reliable written reviews of situations, courts pay less attention on the prior decisions. Only in early on 1800s in the United States official information of cases started out to be accessible, but until 1865 semiofficial information were not stated in England whatsoever. When, finally records became designed for lawyers and judges in Britain, they could more effectively interpret prior decisions.
For the doctrine of precedent to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. Whatever courts decide becomes judicial precedent or additionally it is known as judge made regulation. According to Wisegeek this term developed from the actual fact whereas legislation is passed in a lot of the countries by a separate legislative branch, when the courts can "to exercise a moderate amount of quasi-legislative vitality through the use of precedent and case rules" (Wisegeek, 2008). Sometimes, a judge may purposely action against established circumstance law in an effort to begin the process of re-examining a precedent and perhaps totally changing it. However, the judge will face with problem of rigidity in keeping rules system; because she or he has to push the truth into higher courts where the old established precedents should be re-examined in favor of a new perspective. Regarding to Legal-Directory. net, internet tool, "the probability that case-law will be abrogated or improved by legislation alleviates the downside of rigidity to some extent, however in practice it is unusual for the legislation to hinder case-law. " However, relating to my estimation, rigidity will promote the quickness of decision making process.
The idea of Parliament sovereignty can be drawn from the "glorious revolution" with the Bill of Rights in 1689. The principal procedures of the "Bill of Rights" will be the pursuing; 1) the Crown is prohibited to suspend or do regulations without parliamentary consent 2) the utilization of money by the Crown without parliamentary consent is unlawful 3) the elections of people of Parliament have to be free 4) jury trial must be available 5) elevating or keeping an army in peacetime without parliamentary consent are illegitimate. However, we can easily see the campaign of Parliament vitality in every area of the England life.
The constitutional composition in modern Great britain is not complicated. Moreover UK does not have written or codified sole document to create constitution. Main basic principle of the British constitution can be portrayed in a bald and good manner. Relating to source, "A statute, that is a piece of legislation produced by Parliament, is generally regarded as the best form of law within the English constitutional structure. " The Westminster Parliament is recognized as a sovereign law-maker.
In order to spell it out the idea of parliamentary sovereignty, we will use the Orthodox theory.
In the later XIX century this legal theory originated by an Oxford regulation professor, A. V. Dicey, in the first model of his textbook, An release to the analysis of the law of the constitution. Dicey exerted great affect on British constitutional law, but many legal scholars thought that it was untrue because Dicey cannot express the idea of democracy as it is now understood. For example, Dicey thought that during Parliamentary elections women and working school people can not vote. However, it is important to understand the basic top features of his theory. Dicey advised that the parliamentary sovereignty has two features - an optimistic and a negative one.
Positive point of Diceyan's theory of parliamentary sovereignty is well indicated in the next idea that Parliament can produce or abolish any legislation they need with a simple majority of votes of the House of Commons' associates. Furthermore any particular invoice is then approved by both associates in the House of Lords and by the Monarch, thereafter the bill becomes an Take action, irrespective of its items.
There are no limits used to the element of statute legislation in specialized legal terms; "Parliament can make legislation so it wishes". Surprisingly it doesn't matter how big almost all in Parliament it is for particular strategy; "an Act handed by a majority of one in both the House of Commons and the parliamentary sovereignty House of Lords is an authoritative as legislation which gets unanimous support. " In cases like this we can evaluate that there surely is no differentiation between 'common' and 'constitutional' (or 'important') legislation. Parliament maw behave itself just in the same way while it handles normal issues or of no particular importance issue, or in case there is vitally important concerns.
The negative point proposition can be portrayed in the following way an Function of Westminster Parliament cannot be abolished or improved by any British courts. There is absolutely no special technique in British isles constitution which claims that an Act of Parliament can be officially invalid. However if the statute was set up and approved by Parliament, no one can transform it, even constitution of UK, because we face here with the genuine Parliament sovereignty conception. Based on the Diceyan theory "there is absolutely no higher form of legislation than the will of Parliament".
The Laws of European union is very unique and special system in the world. Any legal serves, directives, decisions or regulations which are created by European Parliament have a binding power for all Participants of Union. It really is apparent that if Judge of Justice of the European Union made any decision on a particular case, henceforth it becomes a judicial precedent for those users who follow the common law practices including England.
The parliament sovereignty in the England system is strongly afflicted by UK's regular membership of europe. As we reviewed that the regulations of the EU has a binding push on all member says it is rational to state that it requires precedent over British domestic law. Furthermore, European union legislation automatically becomes law in UK including Britain regardless of the opinion of Westminster Parliament. However, parliament could consent to abolish prior legislation or give up the EU to show the lifestyle of parliament sovereignty.
English sovereignty has lost its power since the 1986 when the Solitary European Action and the Maastrict Treaty was used where the range of policy areas was lengthened on which European union can legislate. Thereafter many United kingdom Conservative people of the European Parliament think that they should be dealt with at a national level and they continuously vote against many proposals and it is not because of associates' disagreements they just want to show the national coherence.