Do You Agree with the View Expressed in Lord Gardiner’s Practice Statement of 1966 That the English Doctrine of Binding Precedent “Is an Indispensable Foundation on Which to Decide What Is the Law?

Only available on StudyMode
  • Download(s) : 1699
  • Published : March 18, 2011
Open Document
Text Preview
In this question I will be defining what the Binding Precedent is and its main principles that are applied in judicial precedent. I will look at the structure of the court system and whether in this structure the courts are being bound by the decision of others higher courts. I will reflect at how far the binding precedent goes to ensure the existence of both certainty and flexibility in common law. I will talk about the advantages and disadvantages that contribute to the doctrine of binding precedent including examples of previous cases. Finally I will come to a conclusion if I agree overall with Gardiner’s practice statement of 1966. Doctrine of Precedent is a legal term to describe the practice where decisions established in previous Court rulings are legally binding on future cases which have similar circumstances and facts and must be followed. Rulings issued from a Court are binding on that level of Court and lower Courts as the court system follows a hierarchy. The binding force of the precedent depends on the hierarchy of courts, some courts have greater authority than others, a decision made by a court in the superior court will be binding on all other courts, this is the principle behind the doctrine The doctrine of precedent is in the common law system of rights and duties. The courts are bound, within prescribed limits, by prior decisions of superior courts. A binding precedent is to be followed whether it is in sympathy with the decision or not. Each court has to decide for itself whether there is a precedent binding in the cases given and covering the cases given. Where there is a case to be decided is one that is without a precedent, the judge must decide it according to general principles of the law. By doing so, the judge lays down as original precedent which would then be used in subsequent similar cases. There are two main principles that are involved in judicial precedent; these are ratio decidendi and the obiter dictum. Ratio decidendi is a principle of law on which the court reaches its decision. The ratio decidendi of a case may be understood as the statement of the law applied in deciding the legal problem raised by the facts of the case. The ratio of a case is binding on lower courts but may not be cited as persuasive authority in later cases. The second principle is the obiter dictum, it is a statement made by the judge that is not an essential part of the ratio decidendi. It is most referred that something said by the way. Obiter dicta statements do not form part of the binding precedent, but they are persuasive authority and can be taken into consideration in later cases, if the later case consider it is appropriate to do so. The most powerful court in England is the House of Lords. Since 1966, following the statement by Lord Gardiner, the general rule that governs the standing of the decisions made by the court is that every higher court binds the lower courts. The House of Lords binds all other lower courts. It should continue to follow its own rulings but it need not follow its own previous decisions when it appears right to do so, for example, if the previous decision is based on out-dated circumstances or generally criticized as unfortunate, it will not be followed. Next, we have the Court of Appeal. It is bound by House of Lords but binds the High Court, county courts and divisional courts. In the Civil Division, its decisions are binding on all High Court judges trying civil cases and on all county court judges. It also binds itself. This is so unless there are two conflicting decisions where it can choose to follow one of them, also when previous decisions conflict with a later House of Lords judgment. The Criminal Division in the Court of Appeal is somewhat the same as in the Civil Division. It binds the Crown Court and the magistrates’ courts. Normally, the court will follow its own decisions. The exception is when the decision made would cause an injustice to the appellant:- The...
tracking img