The Nature of Precedent

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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 facts are the same’. In connection with this, ratio decidendi should be named. Although the multitude of judges and distinguished authors have tried to give a definition of this expression, it is still a complex area. The one, given by Glanville Williams seems to be the most appropriate: The ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon. Moreover, several rationes can be found in one case and the judge can choose one he or she needs this time. One more difficulty connected with the perception of the ratio. Obviously, the ratio in the particular case depends on material facts, that is, ‘those facts which were important in the judge’s formulation of a rule which proceeds an inch beyond those material facts is suspect’ and ‘the subjective response of the particular judge to particular data’. This can be lead from the fact that the subsequent judge, identifying the ratio, can apply, reinterpret, criticize, modify or distinguish and depart from legal principles, established in the previous decision. Investigating the doctrine of precedent seems reasonable to consider obiter dicta: Statements of opinion upon the law and its values and principles in their bearing on the instant decision, statements which in some way go beyond the point or points necessary to be settled in deciding the case. In other words, obiter dictum means any information, not related to the material facts, ‘said by the way’. Judges are not bounded to follow obiter dictum, however, it can become a ratio in the subsequent case. The content of judicial precedent (its function) is not a straightforward question to answer. However, attempting to do so, the first point is that the doctrine of precedent stands in close relation to the court hierarchy and the second is about the place of judiciary as a whole system under the doctrine of separation of powers. According to the latter, that is Parliament and not the judges who make the law. Indeed:...
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