Judicial Precedent Is Best Understood as a Practice of the Courts and Not as a Set of Binding Rules. as a Practice It Could Be Refined or Change by the Courts as They Wish

Only available on StudyMode
  • Download(s) : 174
  • Published : April 23, 2012
Open Document
Text Preview
Judicial precedent signifies the practice whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent is a practice of the court that provides guidance to the judges when they apply case precedents. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases, which helps provide certainty, consistency and clarity in the application of precedents. The rule is that judges should decide like cases in like manner. It is a decision of the court used as a foundation for future decision making. This is known as stare decisis and by which precedents are authoritative and binding and must be followed. Doctrine of precedent or stare decisis is from the Latin phrase “stare decisis et non quieta movere”, means to stand by decisions and not disturb that which is settled. The doctrine of binding precedent based on stare decisis, means standing by previous decisions. The only binding part of the stare decisis is the ratio decidendi in the judgment which is the legal principles and the rule of law. Other than the ratio, there may also be other comments made by the judge which is referred to as “obicter dicta”, which means, “things by the way”. They do not form part of the ratio but are used as persuasive authority which judges might take into considerations and adopt if they consider appropriate. Once a point of law has been decided in a particular case that law must be applied in all future cases that contains the same material facts. For example, in the landmark case of Donoghue V Stevenson (1932) AC 562, the House of Lords held that a manufacturer owed a duty of care to the ultimate consumer of the product. This then set a binding precedent which was followed in Grant V Knitting Mills (1936) AC 85. In essence, judicial precedent doctrine refers to the fact that a decision of a higher court will be binding on an equal or lower court. The House of Lords stands at the summit of this hierarchy and its decisions are binding on all courts. The next court in the hierarchy is the Court of Appeal, and further down are the Divisional Courts, High Courts, Crown Courts, County Courts and Magistrate Courts. On joining the European Union, UK is now also subjected to EU laws. In other words, EU laws supersede any existing UK laws on the contrary. That is to say, the ECJ is superior to the House of Lords and its decision is binding on all UK courts. Also, as a consequence of the HRA 1998, the convention rights of ECHR are now part of the jurisprudence of the UK courts. If ‘like cases are to be treated alike’ then on that basis the act of complying with the doctrine of stare decisis results in case laws and judge made laws, which becomes an important source of English Law. Because judges have to follow strictly previous decided cases, adhering strictly to stare decisis are therefore look at as being too rigid and has been considered as mechanical. Judges may have to follow a binding precedent even though they think it is bad law or inappropriate. While certainty is much desired, law needs to be flexible to meet the needs of the ever changing society. As proffered by Lord Goff, ‘the law must be developed by judges and jurist in partnership’. In view of the increasing judicial criticisms of the practice of stare decisis, in particular, it was said that the rule did not produce the desired certainty in the law, and that it sometimes produce absurd judgment,, the Lord Chancellor issued a Practice Direction in 1966 where the House of Lords were allowed to depart from their own previous decisions when it appears right to do so. Although Lord Chancellor, Lord Gardiner, regards precedence as indispensable, nevertheless, he recognized that too rigid adherence to precedence may lead to injustice. Lord Gardiner emphasized that the change would enable the House of Lords...
tracking img