judicial creativity essay plan

Judicial creativity

Intro- common law is created through the doctrine of precedent. There are many feature of judicial precedent which enable the system to work effectively. Some allow judges to show creativity and develop common law, however some restrict this.

Features that limit creativity

-         Stare decisis- the principle means that judges must follow what went before

-         Ratio decidendi- the RD is the binding precedent meaning that once it has been created it must be followed in all future cases. E.g. R v Brown

-         Hierarchy of courts- lower courts are bound by the decisions of courts above them meaning that they have to follow decisions made in higher courts. The supreme court and court of appeal

Features that aid creativity

-         Obiter dicta-judges choose whether or not they follow the persuasive precedent, if they do follow the persuasive precedent it then becomes the RD and therefore creates a new common law. e.g. R v Wilson and R v Brown

-         Original precedents- if a judge has to make a decision an area where no previous laws then that judge is creating a new law.

-         Overruling- higher courts can always overrule earlier precedents set in lower courts.

-         Overruling + practice statement- the practice statement was issued in 1966 to allow the SC to avoid their own decisions where it appears right to do so.  E.g. in R v G and Another it was decided that recklessness should always be subjective which overruled the decision made in r v Caldwell.

-         Overruling in the COA- the…