Common Law Reasoning and Institutions
“in practice the doctrine of precedent does not constrain judicial decision-making; activist judges can always creatively interpret previous cases to reach the outcome they desire.”
In considering whether the doctrine of precedent constrain activist judges like Lord Denning in making their decision, we should first examine the English legal system and how judicial precedents operates.
The lowest court of law in England and Wales, which deals with less serious crimes, is the Magistrates’ Court. The courts just above a Magistrates’ Court are County Courts and Crown Courts. Positioned higher in the hierarchy is the High Court. Any parties not satisfied with a decision made by the High Court may lodge an application for leave to appeal with the Court of Appeal. The court of last resort and the highest appellate court is the Supreme Court (formerly, the House of Lords ). Decisions in the higher courts bind the lower courts. In common law legal systems, a precedent is established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. This is called “stare decisis” or let the decision stand. It provides at least some degree of certainty. This doctrine of precedent applies to all courts including the court of appeal, whose decisions bind all lower courts. The court is also bound by its own previous decisions except in the case of two conflicting Court of Appeal decisions or a later House of Lords decision or per incuriam (Young v Bristol Aeroplane Co Ltd). Until 1966, the House of Lords in the United Kingdom was bound to follow all of its previous decisions under the principle of stare decisis, even if this may create "injustice" and "unduly restrict the proper development of the law". This principle is adopted by conservative judges like Lord Simonds. Their rationale is that judges are...
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