The Nature of Precedent
Everything in the world repeats, and it is not an exception for law, providing that ‘some degree of certainty’ of law is essential. In English legal system the doctrine, which brings together the past and the present is the doctrine of judicial precedent, which predominant value is irrefutable. However, it is a disputable question, whether the bias of the doctrine on the maintenance of the judicial authority is accurate and contemporary. The nature of precedent can be described by putting the words of Lord Denning in London tramways case:
Rule of precedent is not a rule of law at all, but a practice laid down by the court for its own guidance; and this practice can be amended or altered.
Thus, the precedent should be deemed as ‘judicial practice rather then a doctrine’ . However, the maintenance of this practice should be described in order to discuss its’ value.
The doctrine of precedent is usually defined by the Latin phrase, which has formed the doctrine of precedent as it stands now: stare decisis et non quieta movere. That is ‘to stand by decisions and not to disturb settled matters’, in other words, previous cases may be binding for the consequent cases. The doctrine consists of some elements, the first of which is the role of the judicial hierarchy. To be more precisely, lower courts are bounded by superior courts’ decisions (vertical aspect) and decisions of courts of equal level of the hierarchy (horizontal aspect). These are binding precedents. However, persuasive precedents (decisions of lower courts, Scottish and northern Irish courts, foreign courts in common law) cannot be disregarded .
However, these general statements are not able to tell the judge whether the doctrine should be applied when two cases are similar. The further complexity here is the fact that the particular data changes from case to case and no identical cases can be founded. Here, words of Glanville Williams can be put: ‘cases must be decided the same way when their material
Rule of precedent is not a rule of law at all, but a practice laid down by the court for its own guidance; and this practice can be amended or altered.
Thus, the precedent should be deemed as ‘judicial practice rather then a doctrine’ . However, the maintenance of this practice should be described in order to discuss its’ value.
The doctrine of precedent is usually defined by the Latin phrase, which has formed the doctrine of precedent as it stands now: stare decisis et non quieta movere. That is ‘to stand by decisions and not to disturb settled matters’, in other words, previous cases may be binding for the consequent cases. The doctrine consists of some elements, the first of which is the role of the judicial hierarchy. To be more precisely, lower courts are bounded by superior courts’ decisions (vertical aspect) and decisions of courts of equal level of the hierarchy (horizontal aspect). These are binding precedents. However, persuasive precedents (decisions of lower courts, Scottish and northern Irish courts, foreign courts in common law) cannot be disregarded .
However, these general statements are not able to tell the judge whether the doctrine should be applied when two cases are similar. The further complexity here is the fact that the particular data changes from case to case and no identical cases can be founded. Here, words of Glanville Williams can be put: ‘cases must be decided the same way when their material
Bibliography: Gearey, A. (2007) The Judicial Practice of Statutory Interpretation (London: University of London). Gearey, A., Morrison, W., Jago, R. (2009), The politics of the common law, perspectives, rights, processes, institutions, (Oxon: Routledge-Cavendish). Goodhart, A. (1931), Essays in Jurisprudence and the Common Law (Cambridge: Cambridge University Press). Holland, J., and Webb, J. (2010), Learning Legal Rules, (7nth edn, New York: Oxford university press). McCormick, N. (1987), Why Cases have Rationes and What These Are, in L. Goldstein (ed.), Precedent in Law (Oxford: Clarendon Press). Williams, G. (1973) Learning the law, (9nth edn, London: Stevens). Practice statement (Judicial Precedent) 1966, p. 1234. R. v A. 2001 2 WLR 1546. Regina v. R. 1991 3 WLR 767. Young v. Bristol Aeroplane Co. 1944 KB 718, at 725.