DOCTRINE OF PRECEDENT AND STARE DECISIS
What do you understand by precedent in the English legal system?
It is a legal case establishing a principle or rule that a court or other judicial body may utilize when deciding subsequent cases with similar issues or facts.
What are the advantages and disadvantages of having a legal system based upon the doctrine of precedent instead of having a legal system based upon codified law?
1. Provides certainty in law.
2. Judges have clear cases to follow.
3. Lower courts follow higher courts.
4. It also leads to an orderly development of the law. Only the Lords can overrule it’s previous decisions and the hierarchy of the courts ensures that lower courts follow higher courts. 5. Case law of real situations – viable statute law and therefore rule and principles are derived from everyday life. This means that it should work effectively and be intelligible. 6. The law can develop. There is flexibility especially since 1966. 7. Saves time – avoids unnecessary litigation.
1. There are so many cases that it is hard for judges to find relevant cases and the reasoning may not be clear. 2. Case law can only change if a real case is brought. This requires someone to have the money (or the access to legal aid) to bring such a case. To take a case to the Lords is highly expensive. 3. Bad decisions are perpetuated since lower courts must follow higher courts (e.g. Anns) Very few cases get to the Lords which is the only court which can overrule one of it’s own previous decisions. Not until 1991 (n R v R) was rape in marriage accepted as a crime. 4. Restricts the development of the law. It leads to distinguishing and hair splitting decisions which rules the law unnecessarily. 5. It is difficult to distinguish between ratio and obiter e.g. Donoghue v Stephenson. 6. Too much distinguishing or use of Practice Statement damages certainty.
What does a court have to do if it has to decide on a case which appears to be similar to an earlier decision?
How is stare decisis different from res judicata?
Stare decisis is basically the principle that a precedent on a certain issue of law decided by the highest court in the jurisdiction should not be overturned unless there is some compelling reason to do so. Res judicata is the principle that once a claim has been litigated and decided in court, that claim cannot be litigated again by the plaintiff in a subsequent lawsuit and the outcome is deemed final. The key is that stare decisis binds everyone in every court in the jurisdiction on a general matter of law, while res judicata is only relevant to a particular party in a particular lawsuit on a particular claim.
What role does the House of Lords (in its judicial function) play in the English system of precedent?
Until 2009 the House of Lords served as the court of last resort for most instances of UK law. Since 1 October 2009 this role is now held by the newly created Supreme Court of the United Kingdom. Practice Statement, but it has been seldom applied by the House of Lords, usually only as a last resort. As of 2005, the House of Lords has rejected its past decisions no more than 20 times. They are reluctant to use it because they fear to introduce uncertainty into the law.
What is the 1966 House of Lords Practice Statement?
Until 1966, the House of Lords in the United Kingdom was bound to follow all of its previous decisions under the principle of stare decisis, even if this created "injustice" and "unduly restrict(s) the proper development of the law".
The Practice Statement 1966 is authority for the House of Lords to depart from their previous decisions. It does not affect the precedential value of cases in lower courts; all other courts that recognise the House of Lords as the court of last resort are still bound by House of Lords decisions. Before this, the only way a binding precedent could be avoided was to create new legislation...
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