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... [continues]
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