University of London
Common Law Reasoning and Institutions
Essay Title: ‘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 changed by the courts as they wish.’ Discuss
Judicial precedent is a judgment or decision of a court which is used as an authority for reaching the same decision in subsequent cases. In English law, judgment and decisions can represent authoritative precedent (which is generally binding and must be followed) or persuasive precedent (which need not be followed). It is part of the judgment that represents the legal reasoning or ratio decidendi of a case that is binding, but only if the legal reasoning is from a superior court, and in general, from the same court in an earlier case. Accordingly, ratio decidendis of the House of Lords are binding upon the Court of Appeal and all lower courts and are normally followed by the House of Lords itself.
The doctrine of judicial Precedent did not become fully established until the second half of the nineteenth century. Until 1898 the House of Lords had the power to overrule it’s own 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 is 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. Once a point of law has been decided in a particular case, that law must applied in all future cases containing the same material facts. For example, in the case of Donughue 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 set a binding precedent which was followed in Grant v Knitting Mills (1936) AC 85. The Supreme Court/House of Lords is the highest appeal court on civil and criminal matters, and all other courts are bound it, and up until 1966, the House of Lords regarded itself as bound by its previous decisions. The next court in line is the Court of Appeal which is bound by itself and the House of Lords. Following the Court of Appeal is the High Court. This court is bound by decisions of the Court of Appeal and the House of Lords. The decisions of this court are binding upon all inferior courts, but not upon other High Court judges, although in practice, they rarely go against each other’s decisions. The fourth court in line is the Crown Court, which is bound by the decisions of the Court of Appeal and the House of Lords. Its decisions – at least those reported as of interest – are generally regarded as persuasive and worthy of being used in argument, particularly those made by High Court judges sitting in the crown Court. Magistrates’ Courts and County Courts is the lowest court in the hierarchy. These courts are not bound by their own decisions, neither do they bind any other court, although they are expected to exercise consistent decision-making.
The United Kingdom is now influenced by the European Convention on Human Rights (ECHR), and guidelines are provided by the European Court of Justice (ECJ). The ECJ is superior to the House of Lords, and its decisions are binding on all UK courts. Also, as a consequence of the Human Rights Act (HRA) 1998, the decisions of the ECtHR are now part of the jurisprudence of the UK courts. This latter factor means that it is possible that the superior courts will find it necessary to alter previous precedents where they have been generated without reference to the European Convention on Human Rights (ECHR). There is also...
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Sixth Form Law, ‘Mechanics of Precedents - The Denning Story’ http://sixthformlaw.info/01_modules/mod2/2_1_1_precedent_mechanics/09_precedent_denning.htm accessed April 24, 2011
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