Editor¶s Comments The doctrine of judicial precedent plays a vital role in the legal system. Students must be able to analyse the practical application of the doctrine and discuss about concept of judicial creativity. Hence it is necessary for the students to be familiar with the role of the modern judiciary today in the context of applying previous decisions to present cases. It is equally important to consider in the context of judicial creativity, whether the doctrine of judicial precedent is a myth, and nonexistent? In another words, if judges actually overrule or depart from previous decisions, what is therefore the value of the doctrine of precedent in the administration of justice? Is it a rule of law or is it merely evidence of the law? A good answer would require students to cite recent decisions and place particular emphasis upon the attitudes of judges demonstrated in the process of judicial decision making.

Introduction ± What is the meaning of Judicial Precedent?
y The term judicial precedent has at least 2 meanings: 1. The process whereby judges follow previously decided cases. 2. It is referring to the decided cases ± a ³precedent´ which may be relied on in the future. y The doctrine of judicial precedent is based on the notion of stare decisis, meaning to stand by cases already decided, and therefore judges would be expected to decide like cases alike. y Stare decisis has two aspects: one concerns the hierarchy of the courts: the place of a court within the structure of decision making; and the other concerns the precedential weight or status of a particular decision. y It is important to appreciate that the limitations placed on the courts by the principle of stare decisis are self ± imposed. There are no legislative provisions on the applications of Judicial Precedent, with 2 notable exceptions: i) Our courts must follow decisions on community law given by the European Court (European Communities Act 1972, S3 (1)). ii) By virtue of S2(1) of the Human Rights Act 1998, when our courts and tribunals decide questions in connection with rights guaranteed under the ECHR, and given effect to the UK by the 1998 Act, they must take into

(b) the court that decided the case within the hierarchical structure .account relevant judgements. y Obiter dictum may be of persuasive authority but it is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. (b) to prevent retrospective law-making. whether it is the ration or the obiter of the decision. Why is Judicial Precedent so important in the English Legal System? Students would require an understanding of the following:(a) the concept of separation of powers : emphasizes the symbolic function and political relationship between the courts and the legislature.e the reasoning. y The judge may go on to speculate about what his decision would or might be if the fact of the case had been different. y Ratio decidendi is the binding part of a judicial decision. (d) the administrative factors : the elimination of delay and reduction of cost primarily. (e) to provide objectivity in the law : "like cases to be treated alike". (h) to achieve a universal sense of justice. (g) to produce expectations and the power of expectations to become normative. (c) the fact that judges do not speak in this way. Ratio Decidendi and Obiter Dictum y A ratio decidendi of a case is the principle of law on which the decision is based. the benefits of 'routine procedure" in the application of previous decisions as a curb on arbitrariness. (f) to maintain the social values of predictability. i. What weight should be given to the doctrine? The factors to be taken into consideration are as following: (a) the status of the statement ± ie. decisions declarations and opinions of the European Court of Human Rights. This is an obiter dictum ± something said by the way. .

(c) the type of judge involved in that particular decision. but what is reasonable differs according to the judges. (e) the period when the case was decided. (ii) The later court considers that the law contained in the previous ratio should no longer be applicable. (f) the status of the precedent with respect to how it fits with the surrounding law. the issue that could arise is whether the doctrine of precedent is flexible in nature as a result of the various judicial attitudes to the extent that it might be diminishing in value and becoming a myth today. Mechanisms Available to Judges to Depart from Precedents In the examination. Overruling : A court of competent jurisdiction within the hierarchy of the courts may declare the decision of a previous case no longer good law. Reversing : This is simply overturning the decisions of an earlier court when it is heard on appeal. A case can only be distinguished on the material facts and if it is reasonable to do so. This arises where a case is sufficiently dissimilar on its material facts and the previous rule need not be followed. What is reasonable is left to the discretion of the judge and this causes a certain amount of uncertainty. Re United of Railways of Havana & Regla Warehouse was overruled by Miliangos v George Frank where the former held that . Distinguishing : The doctrine is inoperative if a previous case can be distinguished.) 2. The following mechanism enable the judges to depart from previous decisions in their exercise of discretion : 1. (d) the question as to whether there was a dissenting judgment. The appeal court will then substitute its own decision. 3. There are reasons for doing this :(i) The previous court did not correctly interpret the law. (h) the reputation that the precedent generally enjoys. ( It is possible to apply both the mechanisms of reversing and overruling in the same case. (g) the status of the decision in a later case. If the notion is carried to an extreme length then judges can avoid an unpleasant consequence by simply distinguishing a previous case though it would have been proper to apply the previous case.

Blackstone: ³The decisions of courts of justices are the evidence of what is common law. and whether precedent are law or only evidence of the law. even though that case started before the precedent was overruled. Per incuriam Judges need not to follow a previous decision if its given ³per incuriam´. ie.damages in breach of contract could only be given in sterling pounds. It has been suggested that overruling should be prospective. It means previous decision has been reached through ³carelessness or ignorance of a certain law of binding decision of House of Lords. When a decision is overruled. Overruling is one important method by which the doctrine of precedent is kept flexible. However. 4.´ y 1892: Lord Esher in Willis v Baddeley (1892): ³There is in fact no such thing as judge-made law. A rule stated in a precedent. It was held in the latter case that the decision of Havana was contrary to the commercial demands of the time. This application is very limited. must serve the public otherwise injustice may be done. ³is law properly so called and law because it was made . it nevertheless is decided according to the new law. deciding that a previous decision is wrong but only treating it as overruled in future cases. the authority is no longer binding either on subsequent courts or the court itself which is overruling. This may seem unfair to parties who may have relied on that precedent only to find that it is overruled on appeal. Law. Overruling not only affects future cases but also the present one. 18th century. it is submitted that this could lead to greater injustice and complications. as a social factor. for the judges do not make the law though they frequently have to apply existing law to circumstances as to which it had not previously been authoritatively laid down that such law is applicable´ y Professor Cross (1977) argued that Blackstone and Esher¶s views were wrong. only 3 circumstances which allows µper incuriam´ A) Where previous precedent was clearly wrong B) Where the life or liberty of a person is at stake C) Where it is unlikely for the Are precedents laws or only evidence of the law? y An important jurisprudential debate as to whether judges make law or whether they simply declare the law. It is therefore said to be retrospective. ie.

the application of existing law to new circumstances could never clearly be distinguished from the creation of a new rule of law. b) Desirability of providing private counsel so far as possible with stable bases of reasoning. In Furtherance of Private Ordering a) Desirability of enabling people to plan their affairs. he may have added something new to the existing corpus of the law. ³If a previous decision were only evidence of what the law is. in declaring it. In giving his opinion as to what the law is. not because it originated from common law in common usage. he is declaring what he finds the law on that point to be. and µthe judge-do-make-law theory´. y When a judge declares a point of law. therefore appear to be right. he may be. Of course he does. From the judge¶s point of view. and it could ever be effectively overruled because a subsequent judge might always treat it as having some evidential value.´ y Lord Radcliffe: ³There was never a more sterile controversy than that upon the question whether a judge makes law. From the point of view of the observer.by the judges. Values promoted by the system of precedent A catalogue of the values promoted by the common law system of precedent was drawn up by Professor Hart and Sacks of the Harvard Law School (1958): 1. Many decisions on points of law add something new in this sense and can therefore be said to be ³making the law´.´ y So far as Lord Esher¶s statement was concerned. or the judge¶s idea of justice and public convenience. He is not saying what he thinks it ought to be but what he believes it is. Having confidence that they comply with the law so they will not be entangled in litigation. added something new or even changes the law. it would be impossible to account for the evolution of much legal doctrine which had been formulated by the judges and no one but the judges. Desirability of encouraging the remedial processes of private settlement by minimising the incentives of the private parties to try to . his function is to declare the law. The ³declaratory theory´. How can he help it?´ This leaves open the question whether there is not also the merit in the declaratory theory of law and in the theory that precedents are evidence of law rather than law itself. If there were no such thing as judge-made law. no judge could ever b e absolutely bound to follow it.

both at any given and from one time to another. 3. c) Need of discouraging a rush of litigation wherever there is change of personnel on the bench. e) Desirability of promoting genuine impersonality of decision by minimising the elements of personal discretion. the impossibility of re-examining de novo every relevant proposition in every case. AND ii. g) Injustice of disappointing expectations fairly generated at the stage of primary private activity. 2. d) Desirability (from he point of view of fairness to the litigants) of securing a reasonably uniformity of decision throughout the judicial system. and of facilitating the operation of the check of professional criticism. the impersonality of decisions. In furtherance of public confidence in the judiciary a) Desirability of maximising the acceptability of decisions and the importance of this end of popular and professional confidence in i. In Furtherance of Fair and Effective Adjudication a) Desirability (from the point of view of the litigants) of expediting litigation and minimising its cost by sparing them the necessity of re-litigating every relevant proposition in every case. b) The need (from the point of view of the judicial system) of facilitating the dispatch of business ± indeed. Their reasoned foundation. b) The necessity.secure from a different judge a different decision that has been given by the same or other judges in the past. considering the amorphous nature of the limits upon judicial power and the usual absence of an effective political check at the ballot box. that judges be subject to the discipline and the restraint of an obligation to build upon the prior law on fashion which can withstand the test of professional criticism. f) The propriety of according respect of the conclusions of predecessor judges. .

The system depends on the accidents of litigation. the doctrine of precedent has many gaps to permit judges wishing to avail themselves to the opportunity to refuse to be crabbed by it : . 2. Over-emphasis of the importance of individual decisions. 5. y However. y A doctrine of precedent that progressed on the basis that precedent would only be followed when the court agreed with the decision reached in the earlier case. Flexibility and stability in the Common Law System y It is not the system. would be a weak doctrine. or a judge may give several reasons for his decision so it makes it difficult for lawyers to discover the ratio as it is obscure. Equally. Often technical problems associated with the fact that the judges give separate decisions so that it is difficult to ascertain what the ratio decidendi is. However. 4. the system itself does not permit both stability and flexibility. 7. Creates law which may upset expectations with no advance notice to those likely to be affected. 6. Example: R v Caldwell (1982) causes injustice in Elliot v C (1983). y On the other hand. but the judges that create the balance between flexibility and stability. it tends to remain the law whether or not it is apt for the situation. thus slow to reapond to changing needs. of bad conditions. Once a point has been decided at the level of the Court of Appeal or the House of Lords. there is no doubt that the doctrine does lead to the perpetuation. There is a strong tendency to follow the precedents whether they are binding or not and whether or not the precedent seems a wise one. Also the proliferation of precedents makes it difficult for lawyers to discover what the law is. 3. it would dissipate much of the benefit of stability to which the system of precedent aspires. sometimes for long periods.Problems Associated with the Law-making by Judges and the Doctrine of Precedent 1. Only in 2003 ± R v G and Another (2003) overruled Caldwell. The Doctrine of Judicial Precedent focuses attention on minute differences of fact between cases at the expense of the consideration of principle and policy. Tends to be backward-looking and conservative. A bad decision may stand for many years. Courts sometimes lack the energy to change them.

it must always be remembered that decided cases are illustrations of principles of law which a judge may turn to in deciding the case before him. logic. nor is the High Court and the Court of Appeal (Criminal Division) is only lightly bound. b) List of exceptions to the rule that the Court of Appeal is bound by its decisions ± Young v Bristol Aeroplanes. how much likely is it to be true of judgements in the lower courts? Points to ponder : Are there more advantages of adhering to judicial precedent? 1. it is natural in every walk of life to reach the same conclusion on the same problem without too much reconsideration. the quality of reasoning in their Lordships¶ judgements in the House of Lords proved to be less impressive than one would have expected. y If this is true of judgements in the House of Lords. Case law was sometimes described and discussed at length and at other time. Their paper demonstrates that frequently. So the citation of . Precedents should be used as ³stepping-stones´ rather than as ³haltingplaces´ ± Birch v Brown (1931) as per Lord Macmillan. y However. Convenient time-saving device Advantages & disadvantages of the Doctrine of Precedent y If a problem has already arisen and been solved in a certain way. social policy and all the other bases of arguments presented to them by counsel in anyway they please. The convenience of following precedents should not be allowed to degenerate into a mere mechanical exercise performed without any thought. This is not something is usually acknowledged. y A different source of flexibility in the system is that judges can manipulate precedents. but it emerged with great force from an important article by 2 lectures at London School of Economics in (1981-82). the judges dealt with precedent by simply asserting that it was or was not relevant. with no explaination or reasoning to justify the assertion.a) House of Lords is not bound by its decisions. was simply rejected as being ³unhelpful´ without discussion in general. y The English Legal System has a doctrine of binding precedent under which the previous case must be followed in the subsequent case. c) Distinguishment d) Appeal system allows any principle of common law to be challenged and thus changed by a court high enough in the hierarchy.

Problem: The application of precedent may produce justice in the individual case but injustice in the generality of cases.The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. 3. the advantage of certainty is lost where there are too many cases or they are too confusing. y This may be assured by the existence of a binding precedent which he must follow unless it is distinguishable. Case law is practical in character. Certainty in the law can only result from a large body of case law if the cases are uniform in outcome and not reconcilable. 5. but retrospective overruling is also affected by it. But. 2. 6.authority in court should be kept within reasonable bounds because it can be costly in terms of time and money. The doctrine of stare decisis is a limiting factor in the development of judge-made law. Existence of a precedent may prevent a judge making a mistake which he might have made if he had been left on his own without any guidance. y y y Based on the experience of actual cases brought about before the courts rather than on logic or theory. This can arise through the process of distinguishing cases and over-refining the principles embodied in them. 4. It would be undesirable to treat a number of claimants unjustly because one binding case had laid down an unjust rule. Practical law is founded on experience but the scope of further experience is restricted if the first case is binding. Greater certainty y y y y y The most important advantaged claimed for the doctrine of Judicial Precedent. Interests of justice also demand impartiality from the judge. y Lord Diplock has warned of the ³danger of so binding the court with case that it has difficulty in seeing the wood of legal principle for the trees of paraphrase´. y y This is one of the objections to the perspective overruling of cases. From this advantage. other benefits flow. The doctrine of precedent may serve the interests of justice. Making of law in decided cases offers opportunities for growth and legal development which could not be provided by parliament. . It may also allow persons generally to order their affairs and come to settlements with a certain amount of confidence.

A system that was truly flexible could not at the same time be certain because no one can predict when and how legal development will take place. The cases exemplify the law in the sort of detail that could not be achieved in a long code of the continental type. There has built up over the centuries a mass of cases illustrative of a vast number of the principles of English Law. But. therein lies another weakness of case law. Judicial mistakes of the past are perpetuated unless bad decisions happen to come before the House of Lord for reconsideration. Its very bulk and complexity make it increasingly difficult to find the law.His discretion is thereby limited and the alleged flexibility of case law becomes rigidity. to meet new circumstances. Flexibility and certainty are incompatible features of judge-made law. or extend old principles. But.y y Courts can more quickly lay down new principles. 7. Flexible y y A judge is free to lay down whatever rule he considers desirable in order to keep the law in step with changing social and economic conditions. a judge is not thus free where there is a binding precedent. y y y Amorphous ± without a clear defined shape or form Perpetuate ± cause to continue indefinitely .

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