Principles of Law and Doctrine of Judicial Precedence - Essay Example

? Principles of Law April 15, Introduction Sta y interpretation and the doctrine of judicial precedence are an important part in application of law in England and Wales. Judicial precedence is a form of law that arises in the sense that present judges are bound to follow the decisions of past judges in the decision of cases. Statutory interpretation on the other hand is the method by which judges or magistrates interpret and apply the current legislation or acts of parliament commonly known as statutes. The application of judicial precedence and statutory interpretation is important in the sense that it allows the person applying it, often the judge to remove ambiguity from the case at hand. Doctrine of Judicial Precedence This doctrine is based on the principle of stare decisis which simply means to “stand by what has been decided and do not unsettle the established” (Dernbach and Richard 1981, p.35). The decision is based on two principles, ratio decidendi and obiter dictum, which means the reason for the judgment and other things, said pertaining to the case respectively. It is important to note that, though the obiter might not be part of the judgment, but it can be used in future judgments because of its persuasive nature (Knoops 2005, p.2). Original precedence present themselves in the nature that the present case is coming to the court for the first time and the presiding judge does not have the opportunity or chance to look at past decisions to make a decision on a point of law (Rossini 1998, p.34). This is what is known, as reasoning by analogy and the decision made in the case at hand will be binding at future cases. For example in the case of DPP v Smith (2006), where the defendant had gone to visit her former girlfriend and held her down cutting out her valued hair, the learned magistrate held that it was not actual bodily harm resulting out of assault. On appeal, it was held that even if the issue of the hair was to be determined scientifically or medically, the hair above the scalp was still regarded as hair regardless of its nature. The judges therefore decided that this was actual bodily harm and therefore the case provided precedence for future cases. Binding precedence on the other hand or those whereby a case has been made and future judges or the present judge must abide by it regardless of his or her own opinion. This therefore means that courts in the lower ranks must follow the particular decision regardless of any new issue arising and the cases presented must be similar to the previous decision or must have facts that are almost similar to the case at hand. The judicial system in England and Wales are such that courts are bound and they must follow the cases and decisions made in the upper or superior courts as the decisions in these cases provide precedents that must be followed in future cases with similar circumstances. These cases must therefore be followed or applied by courts down the hierarchy. It is important to note that magistrates or subordinate courts do not set precedent but they must follow the cases set by the superior courts, in this case the House of Lords or the appellate courts (Antoine 2008, p.118). Persuasive precedents are those in which the court decides whether to follow the precedence set or not to follow it. This precedence is not binding to the court and the court can follow them or ignore them depending on the legal principle in the case (Mitchelle and Minel 2003, p.73). These precedents can come from the lower courts or the magistrate courts and only the legal principles present in them can be applied in the upper courts. In R v R 1991, the Court of Appeal provided a persuasive precedence for an upper court, the House of Lords holding that a man can be found guilty of rape as against his wife. The Privy Councils in England and Wales are also influential providers of persuasive precedence to the courts of law though the decisions are not as binding as decisions made in a court of law. For example in R v Mohammed 2005, the Court of Appeal was ably persuaded to follow a decision set by a Privy Council previously. It is important to note that appellate courts are bound y the stare decisis principle in the decision of cases. The doctrine rule of precedence is applicable at the House of Lords, though the courts have been made flexible not to be bound by such cases. For example, the courts may depart from the precedence if they feel that the case was wrongly decided, or if they feel that it is right to decide the case in a different manner different from the precedence. This is however rare as the House of Lords rarely follow such path. The main reason projected for this flexibility is to allow the development of law and to arrive at fair decisions. Statutory Interpretation This is applied by courts when a question as to the application and interpretation of an act of parliament in determining a point of law. The judges use certain principles to find out the exact meaning of a statute when it presents any ambiguity in a case. The ambiguity may present itself in a number of ways; for example, words or phrases may have different or unclear words or phrases, an error that occurs due to drafting at the law making stage or new developments. There are three approaches in the interpretation namely the literal rule, golden rule and the mischief rules, which are applicable as the case may present itself. Literal Rule In interpreting statutes using this rule, the courts give the plain meaning of the statute as it is written in the act itself and enacted by parliament. This approach applies two rules, that is the noscitur a sociis rule which means that the words in the act of parliament or he statute are defined according to the context in which it has been used. The other rule is the ejusdem generic, which defines terms in line with the words that come before it. Though this approach of interpreting statutes is rigid in nature, it is important in the sense that it ensure the law is followed according to how parliament intended it to be (Slapper and David 2011, p.101). Golden Rule The Golden Rule of statutory interpretation follows two approaches, which is the narrow or broad approach that requires courts to look at the literal approach at first and apply the golden rule if the case presents an absurd situation (Laster 1997, p.170). This can be through the narrow approach where a case is determined by choosing the meaning of a term that may have multiple or many meanings. In R v Allen (1872), a case involving the offence of marrying while a person’s spouse is still alive, the court held that the word ‘marry’ meant either to be legally married to another or taking part in another ceremony of marriage. The absurdity in the first meaning of to ‘legally marry’ more than once was cured by interpreting the statute through the golden rule as using the literal rule would have made the law be rigid and therefore a person falling under such arm bit would be guilty of an offence of bigamy. The broader approach in statutory interpretation allows the courts to have a modification of the words in the statute since failure to modify the provision may make the statute be repugnant to the law or the justice system. In R v Sigworth (1935), the courts applied the golden rule in interpreting the Administration of Justice Act 1925 to convict a son who had killed the mother and denied him his inheritance as one could not benefit from his crime. The Golden Rule is important because it is lenient, providing judges the chance to apply reasonable decisions as the case may present itself. However, it presents uncertainty in a case, as the litigants often do not know what the outcome of a case may be. The Mischief Rule The rule is applied by courts whereby they look at the intention the parliament or the legislature had as at the time of making the law in question. The Heydon’s case 1584 provides the factors or principles that must be regarded as or followed in application of mischief regulations in interpreting laws. These include a proper evaluation of the common law available before the enactment of the particular statute, the mischief the particular law failed to provide for, the remedy the parliament provided to cure the particular defect in the commonwealth and the reason for the remedy to be provided presently. This form of interpreting a statute is important as it avoids the absurdity that may be presented by the literal rule, but is also disadvantageous or not preferred as it undermines the role of parliament in making laws as it gives courts the chance to interpret laws in their own way. Purposive Approach Here the courts apply the law according to what they believe parliament wanted to achieve in making the particular law. In Coltman v Bibby Tankers 1988, the term ‘equipment’ under the Employers’ liability (Defective Equipment) Act 1969 was broadly defined to include the intention of parliament in the interpretation of the law. The importance of this mode is the provision of justice to individual cases (Barak 2011, p.345) Conclusion Judicial precedence and statutory interpretation are important in the application of law in England and Wales especially in the determination of points of law. This is effective in achieving certainty and consistency in the application of law to ensure fairness in the dispensation of law and allow the development of jurisprudence as applied by courts of law. References Antoine, R.M. (2008). Commonwealth Caribbean Law and Legal Systems. London: Routledge. Barak, A. 2011. Purposive Interpretation in Law. New Jersey: Princeton University Press. Dernbach, J.C, and Richard V. Singleton. 1981. A Practical Guide to Legal Writing and Legal Method. Littleton, Colo: F.B. Rothman. Knoops, G. J. 2005. Theory and Practice of International and Internationalized Criminal Laster, K. 1997. Law As Culture. Sydney, NSW: Federation Press. Mitchell, A., and Minel D. 2003. As Level Law. London: Cavendish. Proceedings. The Hague: Kluwer Law International. Rossini, C. 1998. English As a Legal Language. London: Kluwer Law International. Slapper, G. and David, K. 2011. English Legal System, 2011-2012: London: Taylor & Francis. Read More