Doctrine of Judicial Binding Precedent
This question raises the issue of the role of precedent. In order to examine the statement, scrutiny of the doctrine of the judicial precedent is required. Case law is used to describe the collection of reported decisions of the courts, and the principles which stem from them. Lord Macmillan made this observation that the case by case development is superior to those based on hypothetical models. “.....any fixed theory and that principles always fail because they never seem to fit the case in hand, and so prefers to leave theory and principle alone.” The doctrine of judicial binding precedent, concerns itself with the importance of case law. When cases are examined, the facts of the case are considered. More importantly, how the law applies to these facts is scrutinised. It is the latter that produces precedent, based on the maxim of stare decisis. Precedent can only operate, if the legal reasons for past decisions are known. The ‘reason for deciding’ or ratio decidendi, as a general rule is binding on all lower courts. It is important to distinguish between the different types of precedent. Original precedent concerns a point of law that hasn’t been decided. What is derived from this is, a new precedent for future use. Binding precedent stems from earlier case law and must be followed. Persuasive precedent is not binding, but courts may take it in to consideration when considering a particular principle. The statement suggests that precedent does not develop different principles ‘into a coherent whole’. This is supported by the fact that the sheer volume of decided cases, increases all the time. Judgements are often long, and not necessarily ‘coherent’ in nature. This continuous nature of the judgements makes it very difficult to distinguish between the ratio decidendi and obiter dicta, as seen in Donoghue v Stephenson. In order to avoid binding precedents, judges have sought to distinguish cases on differing facts. This has resulted in a series of illogical distinctions, creating very complex areas of law. The two cases which demonstrate distinguishing are Balfour v Balfour and Merritt v Merritt. Both cases were regarding breach of contract between spouses. It was held in Balfour that there was no legally binding contract between them. In Merritt, the couple who were estranged at the time of the agreement had a legally enforceable contract. Furthermore, the unsystematic progression of case law adds to the imprecise nature of the development of case law. Another point to consider is the development of the law goes only as far as the cases brought forward, which has implications for growth in certain areas of the law. If an area of law in undeveloped or unclear, a decision cannot be made until a case is decided. Yet it is also argued that the current system of precedent is coherent, in the respect to the certainty of decisions. The English system of precedent is based on the Latin maxim stare decisis, which translated is ‘stand by decisions’. Lawyers are able to advise clients based on what had gone before, so can speculate to the likely outcome of cases. This certainty in the law also promotes consistency and fairness in the law. Case law demonstrates that the development of different principles can be very precise and detailed. It can be disputed that the law, is in-fact well illustrated through gradual development. For example there are many areas of law that owe their existence to judicial law making, such as contract or tort law. Contract in particular still has rules that date back to the nineteenth century. Tort law has been largely shaped by precedent. In the case of Donoghue, the very significant ‘neighbour principle’ was created. The role of precedent, according to the statement is about ‘disciplining particular judges’. This is based on the idea that perhaps judges need to be controlled or restricted with regards to their law making power. In so doing, raising the...
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