Do Judges Make Law

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University of London

Common Law Reasoning and Institutions

Essay Title: ‘Judicial precedent is best understood as a practice of the courts and not as a set of binding rules. As a practice it could be refined or changed by the courts as they wish.’

Student Number: 090500532

Candidate Number:L8000

The declaratory theory of English common law is that the function of the judge is to declare what has always been the correct legal position at common law. In carrying out this task judges should aim to treat like cases alike so as to bring certainty and consistency to the application of the law and for this purpose they should observe the doctrine of precedent based on the hierarchy of courts. This declaratory theory preserves the constitutional role of the judges and leaves the task of legislating to the Parliament.

The doctrine of judicial precedent is based on the principle of stare decisis which means that like cases should be treated alike. The general rule is that all courts are bound to follow decisions made by courts higher than themselves in the hierarchy and appellate courts are usually bound by their own previous decisions. This is known as the principle of stare rationibus decidendis; usually referred to as stare decisis. It translates simply as ‘Let the decision stand’. Stare rationibus decidendis is the more accurate statement because, as we shall see, it is the reasoning (rationibus) that is the vital binding element in judicial precedent. However, nobody actually refers to it this way. What stare decisis means in practice is that when a court makes a decision in a case then any courts which are of equal or lower status that must follow that previous decision if the case before them is similar to that earlier case. So, once one court has decided a matter other inferior courts are bound to follow that decision.

The practice of precedent was established in the mid-nineteenth century and reaffirmed in 1898 in London Street...
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