Judicial Precedent

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Judicial Precedent is a decision of the court used as a source for future decision making. In Judicial Precedent the decision made in superiors are binding on subsequent cases in lower courts on the same or similar facts.

The doctrine of judicial Precedent did not become fully established until the second half of the nineteenth century. In the Common law Courts in the United Kingdom the procedure was to apply the theory of the common law, which as simply customs of the land. Decisions by the judges were made on these common customs, although they regarded precedent as persuasive. As time passed, judges paid more and more attention to previous decisions. One important and distinctive element of the English law is that the reasoning and decisions found in preceding cases were not simply considered as a guide. They could be considered binding on later courts. This is known as stare decisis (let the decision stand). This means that when a court makes a decision in a case, then any court which are of equal or lower status to that court must follow the previous decision if the case before them is similar to that of the earlier case. Thus, once a court as decided on a matter other inferior courts are bound to follow the decision.

In the mid nineteenth century the House of Lords developed the practice that it would be bound by its own decision. It felt that the decision of the highest appeal court should be find in the public interest so that there would be certainty in the law. Thus, in MIREHOUSE V RENNELL (1833), Baron Parke said that notice must be taken of precedents and that the court should not reject or abandon them.

Also in the Court of Chancery there was no definitive theory, the judges merely tried to do justice in each individual case. The system lacked certainty and came under heavy criticism. The court then began to pay greater respect to its previous decisions. In 1865 a Council was set up to publish under professional control the decisions of the superior court. This also led to the passage of the Judicature Acts 1873-1875 which established a clear court hierarchy as the doctrine of precedents depended for its operation on the fact that all courts stand in a definite relationship to one another.

This doctrine of precedent lies at the heart of the English Legal System. It refers to the fact that within the hierarchical structure of the English courts, a decision of a higher court will be binding on a lower court. Thus in the hierarchy, it means that when a judge tries case he will check to see if a similar situation had come before a court previously. If the precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the rule of law established in the earlier case. Where the precedent is from a lower court in the hierarchy, the judge in the new case may not follow the rule of law but will certainly consider it. This doctrine depends for its operation upon the underlying principle that the courts form a hierarchy with each court standing in a definite position in relation to every other court.

Although a single decision of a superior court is binding on subsequent lower courts, the House of Lords which is the highest court in the English Legal System does not regard itself as strictly bound by its previous decisions, for example in the MURPHY V BRENTWWOD DISTRICT COUNCIL (1990) the House elected to overrule its earlier decision in ANNS V LONDON BOROUGH OF MERTON (1978) on the issue of a local authority’s liability in negligence to future purchasers of property.

Judicial precedent as outlined above is an important source of English Law, as an original precedent is one which creates and applies a new rule. However the later decisions, especially of the higher courts, can have a number of effects upon precedents. The decisions can be...
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