Common law reasoning and institutions Study Pack
‘The Judicial Practice of Precedent’ Adam Gearey
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University of London External System
The judicial practice of precedent
1 Precedent as a judicial practice
To describe precedent as a practice is to draw attention to the way in which judges interpret the law and act on the basis of those interpretations. Practices take shape within a culture that determines how they are composed. In this chapter we will thus direct our attention to the institutional context of judicial interpretation. This will take us towards an understanding of the hierarchy of courts. Court hierarchy needs to be seen as a factor that has influenced and determined the forms of the judicial practice. As Danny Nicol says: ‘Underlying precedent is an emphasis on stability, permanence and the wisdom of the past – the common law being conceived as an accumulation of such wisdom – combined with reverence for the higher courts as the ‘elders and betters’ of the lower courts. Precedent reflected the vision of law as an undertaking based on learning, acquired skills and experience. At the same time, since precedents exist in order to be applied, the system essentially empowered the higher courts to legislate. Presented as a restraint, precedent camouflaged law-making whilst in reality constituting law-making.’ Danny Nicol, Public Law 2006, Law and Politics after the Human Rights Act However, practices are never unitary. They are animated by tensions that reflect disagreements over the precise way in which the practice should be performed. A consensus shared between practitioners over the techniques and performances that constitute a practice reflects the stability of the practice as a whole. We will see that judicial interpretation is a relatively stable practice. However, there have been important disputes over its precise operation and in some important areas, notably human rights, debates are ongoing. Note that a thorough study of the judicial practice of precedent would analyse the interpretative techniques that determine the statements of...
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