Comparison of US and UK Court Practice - Essay Example

?Doctrine of Judicial Binding Precedent [ID Number “In truth judges make and change law. The whole of the common law is judge made”. This is surprising to hear from a United Kingdom Lord: Judicial precedent and stare decisis is vital in American jurisprudence, but in the UK it is decidedly less central1. Judicial precedent, stare decisis and similar doctrines tend towards a conservativism and inflexibility in the system. But the United Kingdom does have a substantial influence of judicial precedent in its system, particularly when it comes to the House of Lords. In London Tramcars Co Ltd v London County Council2, Lord Halisbury ruled that when the House made a ruling on a 'point of law', it becomes 'conclusive upon the House afterwards, and it is impossible to raise that question again as if it was res integra and could be re-argued'. In short, the House of Lords cannot later undermine their own rulings on points of law. The issue can be debated again, but not res integra. In practice, this means that anyone coming before the House of Lords can argue prior precedent, and if that precedent applies, the House of Lords is powerless not to rule in their favor on that issue. “This coercive character of the doctrine of precedent is a feature peculiar to the English legal tradition”3. Even in the United States legal system, precedent is not absolutely binding, in two ways. 1. It is possible in the United States tradition to overturn precedent. Dred Scott, Plessy v. Ferguson...famous cases that changed the course of American law and jurisprudence involved overturning prior cases. 2. There is more leeway for precedent to be ruled non-binding or to be reinterpreted more carefully Judges in the British tradition are supposed to interpret law, not make law, even more so than in the United States system. The House of Lords only has the leeway to interpret law when there is no law already in place. Further, not only is precedent binding, but the English system is further peculiar because individual precedents are powerfully binding4. Even in the French and American traditions, lines of cases are interpreted and their varying precedents debated, but in the UK tradition, an individual case is understood and can “create a binding precedent, similar to a statute”. Beamish v. Beamish was a key case in establishing this doctrine, ironically itself an example of a single case creating binding precedent. Combined with the London Tramway case, it is only possible for precedent to be overturned by an act of Parliament, whose sovereignty cannot be undermined. One of the consequences of the increasing importance of precedent was that legal reporting and the documentation and maintenance of case law became far more important4 . It seems that the doctrine emerged as a reaction to parliamentary sovereignty4 . Prior to the emergence of the doctrine, only Parliament could make clear, consolidated law that was held within “four corners”, complete like a room. When the House of Lords makes a judicial opinion, it takes on the force of law and has statutory implications. People must abide by the regulation. If the House of Lords interprets that a particular environmental law applies to an industry, it has the effect of changing the enforcement as powerfully as an act of Parliament. One could in fact argue that the law of binding judicial precedent essentially elevates the court to the level of law, which is an important addition to Browne-Wilkinson's comment. How, then, can Browne-Wilkinson's comment be interpreted? It points to several truths about the Commonwealth law that the doctrine of judicial binding precedent can obscure. First, previous Lords made those precedents and made those rulings. This means that, while from the modern perspective, law may be interpreted rather than created, it was created at one point, and will be created again whenever there are gaps. Second, in practice Lords do make law, the doctrine be damned. This is because it is up to the Lords themselves to determine if precedent applies. If they view that some precedent doesn't apply to a particular situation, then it doesn't apply no matter what others may think. Third, as we've seen, the fact that the doctrine establishes a binding precedent actually elevates the House of Lords' judicial task to the level of law. Just like an act of Parliament can only be overturned by another act of Parliament, so too can a House of Lords ruling on a matter of law only be overturned by an act of Parliament, whether amendment or new legislation. The principle might seem to bind the House of Lords, but because it gives the rulings of the House of Lords binding statutory power, it actually paradoxically increases the power of the House of Lords. “Binding precedent, therefore, had the happy, dual characteristic of asserting judicial power to legislate through the initial declaration of law and deferring to the legislature by acknowledging that lawmaking had shifted to the Parliament [particularly the House of Commons], thereby leaving any change in judge-made law to the sovereign legislature”4. In fact, this change totally transformed the way that law operated on a deep philosophical and assumptional level. “The doctrine of binding precedent was, therefore, an example of a shift away from considering law as a set of principles existing outside the judges who applied them and toward an image of law as a statement issued by a government institution4”. Prior to the doctrine, law was found in nature or common sense or in practices on the ground and only interpreted by judges; but now, law became more absolutely a creation of institutions. A whole consensus on a culture of law was replaced by a far more formalistic interpretation by the doctrine. It is also important to note that judicial binding precedent creates “reliance interests”4 . In an increasingly complex economy that began with industrialisation in the 19th century, it became more and more necessary to provide consistent, unchanging interpretations which could be used as unequivocal guides to action and incorporated into business plans. Law has to become more formalistic when institutions become larger and more complex, when village production and idyllic life is replaced by the din and noise of industrialisation. The precedent system is also effectively law because it binds the decisions and capabilities of lower courts at interpreting law5. Lower courts have an even lower ratio decidendi, or ratio of binding to discretionary precedent, thanks to the doctrine of binding judicial precedent. This means that the House of Lords' decisions strongly determine not only future House of Lord decisions, but also decisions made throughout the entire rest of the court system. Benjamin Cardozo famously offered a parallel insight to Browne-Wilkinson in lectures on The Nature of the Judicial Process6. He called judges “legislators”, noting that, while stare decisis prevents them from making decisions where there are no gaps between the law and where the law is clear, judges have legislative power where there are gaps. This is especially true of the House of Lords. Further, consider what would happen if a court were to provide some interpretation of the law so utterly opposed to the legal definition of the statute or statues at hand that it was impossible to assume that there was a reasonable conclusion, what would happen? Ultimately, appeals and investigation processes would potentially overturn it. When an appeals court changes a prior decision, they are remaking law. The House of Lords' decisions being binding means that they are the official end of the line: It makes them the ultimate enforcers of the law. Again, the doctrine expands as much as contracts the House's power. There are concrete impacts on the economy, that demonstrate Browne-Wilkinson's point of the arbitrariness of the notion that judges interpret, not make, law. As it comes to recovering money paid under a mistake of law, the judges held, “the mistake of law rule no longer forms part of English law.’ Where the law was deemed to have changed after a court decision, money paid under a view of the previous settled law became recoverable. The law is deemed always to have been as now found. The limitation period ran from the date of the discovery of the error of law. The old rule is not to be followed. Money paid under a mistake of law should be recoverable on the same footing as money paid under a mistake of fact, subject in the same way to the defences available in the law of restitution, which include the defence of change of position”7. Note that this violates an element of American jurisprudence, where law cannot be retroactively applied: In the United Kingdom, the ability of the House of Lords to make an interpretation is so absolute that, when a mistake of law is interpreted by the House of Lords, it is possible to pursue, retroactively, collection. The House of Lords thus impact the practice of finance, economics and industry by making it possible for transactions drastically after the fact, as much as six years, to be pursued because of legal changes. Recall that one of the very points of stare decisis is to reduce uncertainty. The fact that uncertainty can be in some ways increased by the absolute nature of the doctrine shows that the House of Lords is nowhere near as powerless as it seems. There is also the matter of persuasive precedents4 . Other Commonwealth and former Commonwealth nations, international law and rulings, etc. can be used as precedent, but this precedent is persuasive, not binding. The House of Lords are given further leeway to create law based off this precedent. The doctrine of binding judical precedent is thus a means for the House of Lords to substantially impact law. Their rulings can change torts, the ability of regulators and law enforcement to act (either increasing it or decreasing it), altering rights, etc. Because there is no Constitution in the United Kingdom system, only Basic Laws, and Parliament is sovereign, the House of Lords has no document to point to and nothing that can be used as a reason to overturn it. In American jurisprudence, the Supreme Court must answer to a higher authority: The Constitution. Later rulings can argue that the Court's original decision was erroneous. But in United Kingdom law, there is no higher judicial authority that the House of Lords is beholden to. There is no higher source of law that could undermine them: Parliament can change the law, but Parliament does not declare that the House of Lords was wrong in its determination. It is true that the doctrine handcuffs the House of Lords in the longterm, reducing their flexibility later. But it also makes it clear that the common law is created by the House of Lords with no possible vetoing actor above it, at least as regards the interpretation of existing law. The House of Lords do create, make, amend and alter law at their whim in the United Kingdom and Commonwealth legal system. Bibliography Andrew Mitchell, AS Law (2008), Taylor & Francis US. Kent Greenwalt, 'Discretion and Judicial Decision: The Elusive Quest for the Fetters That Bind Judges' (March 1975), Columbia Law Review Vol. 75, No. 2, pp. 359-399 Mumia Abu-Jamal, Jailhouse Lawyers (2009), City Lights Press. Rose-Marie Belle Antoine, Commonwealth Caribbean law and legal systems, Psychology Press [2008]. William D. Popkin, Evolution of the judicial opinion: institutional and individual styles (2007), NYU Press: New York. Read More