英国本科Essay代写案例

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　　In English law the law making power lies with the parliament. However judges also make law by way of judicial pronouncement. Under the English legal system it is deemed that the decisions given by higher courts are binding on the lower courts. This principle is famously known as 'stare decisis' which means to stand by previously decided cases. The importance of this principle is that courts are bound to follow previously decided cases specially if the decision is given by a higher court. For e.g. the Court of Appeal is bound to follow the decision given by the UK Supreme Court (previously House of Lords).

　　It can also be said that nowadays judicial precedent has been laid down in such a manner that it will be more easier for judges to interpret the law and also to stay on the path of precedent which is now flexible enough to give judges the room to give fair and just judgment according to the demand of time.

　　All decisions at least create a persuasive precedent， the degree of persuasiveness depends on the position of the court in the legal hierarchy. For e.g. precedents from the Judicial Committee of the Privy Council is not binding since the Committee is not part of the normal hierarchy of courts in UK (because the Committee is comprised of up to 9 of the most senior judges， Lords of Appeal in Ordinary (or Law Lords)) r sources of persuasive precedents include courts in foreign countries， for example， the decision in (Eliason v. Henshaw).

　　Obiter dicta have formed law in many cases for example， in (Central London Property Trust Ltd. v. High Trees House Ltd) and Pinnel's Case.

　　There are three main reasons why persuasive precedents are not binding：

　　The first is that the doctrine of precedent in similar cases should be treated in the same way. This restriction does not apply with persuasive precedents.

　　The second is that there are a huge bulk of persuasive precedents， and it would be impracticable to follow them.

　　The third is that persuasive precedents are frequently not considered per curiam as ratio decidendi and even when they are， they are not usually considered. Therefore there is a greater risk that they will be considered ill and thus may be bad law.

　　Only points of law are binding. For example， in (Qualcast v. Haynes)， it was decided that the 'precedent' that employers who failed to give instructions on the use of protective clothing were de facto negligent， was a question of fact and therefore not binding.

　　There are two main theories of precedent. The first of these is the declaratory theory， which states that the common law does not change - in each case the law is merely re-stated but not added to - the judges are declaring the law on the basis of past decisions.

　　The realistic theory is that they do - all principles must originally come from somewhere， and the abstraction of old principles is the creation of ne.

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