英语论文网

w law.

The declaratory principle states that law is not created, it exists within the judges, except where 'the former determination is most evidently contrary to reason; more if it be clearly contrary to divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared not that such a sentence was bad law, but that it was not law, that is, not the established custom of the realm, as has been erroneously determined.' - Blackstone.

In the 19th century, the judges generally adopted the position that they were not concerned with the outcome of their decisions, and that they did not make law, but merely interpreted them - 'It is the province of the statesman, and not the lawyer, to discuss, and of the legislature to determine, what is the best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only; the written from the statutes: the unwritten or common law from the decisions of our predecessors, from text-writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is best, in his opinion for the advantage of the community.' - Per Parke in (Egerton v. Brownlow ).

In modern times judges have showed only a limited reluctance to overrule what has been set before them, and usually only when it would be visible to their eyes that the law needs to be changed and only then following the circumstances many of the Law Lords now believe that the law should be developed according to the changing of circumstances in the society - for example the abolition of the marital rape rule.

The likelihood of a judge overruling or making new precedents depends on the degree to which it would fundamentally change the law, the need for justice, and the need to find a logical and merely a just solution following the changing circumstances of our society.

先例-实践中的PRECEDENT IN PRACTICE

上议院-THE HOUSE OF LORDS

It was first established in 1966 by a practice statement given by House of Lords that they were not bound by its own decisions. Their lordships regarded the use of precedent as indispensable. Their lordships nevertheless recognize that too rigid adherence to precedent may lead to unjust and undue restrict to the development of law. While treating former decisions of this House as normally binding and to depart from a decision where it appears right to do so.

This was followed in (Miliangos v. George Frank (Textiles) Ltd), which overruled the 1961 (Havana) case. This was done because the reason for the original decision is no longer applied. It did however follow the (same decision) of the Court of Appeal.

The House of Lords overruled itself in (Conway v. Rimmer) over (Duncan v. Cammell Laird & Co) , in (Vestey v. IRC) over (Congreve v. IRC), in (R. v. Shivpuri) over (Anderton v. Ryan). But in (Jones v. Secretary of State for Social Services) it was held by a 4-3 majority that a decision was wrong, but by a 4-3 majority that it should not be overruled.

In (R. v. Secretary of State for the Home Department (ex parte Khawaja)), it was said that to overrule a case