The Doctrine of Precedent can be considered both a Blessing and a Curse - Essay Example

Running Head: The doctrine of precedent The Doctrine of Precedent can be considered both a Blessing and a Curse The Doctrine of judicial Precedent is a well-established part of the Australian legal system. It gives Judges the power to make and change laws, which can often be the source of some criticism. Within this essay, the history of the Doctrine of Precedent will be outlined, there will be references to two preceding cases, relevant terms will be defined and the advantages and disadvantages of the Doctrine of Precedent as a basis for common law will be argued. Local customary law was the most common form of law in England before the Norman Conquest in 1066. Local communities would congregate to form assemblies, also know as moots, where they would create laws based on common customary views shared among the community. At the beginning of the thirteenth century, the concept of common law began to emerge. An internal system of courts was set up, with each community sharing the same laws. Judges travelled to the communities and followed the same rules, therefore making the laws enforced throughout common to all. To provide consistency between the communities, if a judge was making a decision about a case, and there was a case of the same nature that had been decided by a judge before it, they would be resolved in the same way, with the same ruling. That meant that the first judge to make a ruling on a particular case had made a law that judges in following cases (which were of the same nature) were obliged to follow. This still applies within the Australian legal system today. Courts are bound (within prescribed limits) by prior decisions of superior courts within the same State or Federal hierarchy. This is collectively known as the 'Doctrine of Precedent'. Judicial law is a large part of the Doctrine of Precedent. It is named judicial law because it is law made by judges, which is to be followed by judges in subsequent cases. Whether or not a case is binding, is determined by two things; whether the preceding decision comes from a judge that is in an equal or higher rank than the judge deciding the case (this given the Latin term stare decisis, which means 'stand by decided'), and whether the relevant legal principles of the preceding case are the same or similar to the case in question. When dealing with precedent, judges and lawyers have to be able to break previous judicial decisions into two parts; the relevant legal principles that are binding, and the rest that is not binding. The part that is binding is given the Latin term ratio decidendi, which means 'reason for deciding' and the part of a judges decision that is not binding is given the Latin term the obiter dicta, which means 'incidental things said' and only has incidental bearing on the case. The Doctrine of Precedent gives judges the power both to reuse past decisions and rephrase past decisions. As consequence of these powers, new laws can be made. An example of a judicial precedent is the case Donoghue v Stevenson (1932). (Tufal, 1996) In which a decomposing snail was found in the bottom of a ginger beer bottle. The House of Lords found that a manufacturer owes a duty of care to the consumer to provide products that are safe. This case set a huge precedent for common law that is still relevant today, and the context of the word 'product' has been used not only in food products, but also in cases including motorcycles and underwear. There have always been, and still are many critics who do not believe that judges should have the power to make laws. There are many convincing arguments both for and against the use of the Doctrine of Precedent in Australia. To accurately argue the advantages and disadvantages of the Doctrine of Precedent as a basis for common law, it is important that Statute law, which is the other form of law making in Australia is mentioned. Statute law is 'a law in place by legislature', which means it is made by parliament. Statute law always overrides common law. It is the view of some critics of the Doctrine of Precedent that law making powers should only be held by parliament, and not by judges who are not elected by the people. However, there are many instances in which judicial precedent is an advantage. In the well-known English case R v Manly 1 KB 529 (Chisholm & Nettheim 2000, p.30) Elizabeth Manly told police that a man had physically assaulted her, and stolen money from her. The police took the matter seriously, but it turned out that it never actually happened. She was convicted of the offence, 'effecting a public mischief'. At the time there was no law in the statute books which dealt with 'effecting a public mischief'. If the Doctrine of Precedent had not been established, she would have been let free after wasting the police's time and money, which lead to the arrest of three innocent men. Critics would argue that a judge creating a law of this nature is unfair, for Manly couldn't have been warned by a lawyer not to testify, because it wasn't illegal. But there also can be a degree of predictability to judicial law. There were a few previous decisions that ruled conspiracy to effect public mischief was an offence, but a conspiracy is an agreement which didn't fit in with Manly's case in which she was the only one involved. Manly may have been able to predict that what she was doing was not right. Another argument could be that if she was let free without punishment, it would not give adequate guidance to other people about what conduct is acceptable and what is prohibited. Another advantage of judicial law is its uniformity. Similar cases will be treated in a similar way. This gives the legal system a sense of justice, and rules out any discrimination or unfairness. The next issue to be explored is the perceived flexibility of judicial law. Some critics may argue that judicial law is inflexible, and unable to change with society because the courts are always bound by precedent. An effective law must flexible be able to change with society, for over time the views and attitudes of people change. It could also be argued to the contrary, that judicial law can be flexible. Decisions to follow precedent can be avoided by distinguishing the facts of the current case from the preceding case. It therefore enables the system to change and adapt to new situations. Stability within societal standards can be maintained through subtle changes in case law over time. Citizens can keep up with the law, always know their rights, and be able to determine what is and what is not legal. Judicial law can be very complex. There are so many cases to refer to, and to distinguish what the ratio decidendi of preceding decisions is. This can create a considerable wait for a case to come to court to be decided. When judicial law is applied in the proper context, it creates a detailed structure for judges to be influenced by, which creates a fair and predictable ruling. References Chisholm, R., and G. Nettheim, Understanding Law: An Introduction to Australia's Legal System, 6th Ed., Butterworths, Sydney, 2000. Donlyn, Lyndon. "The City Observed: Boston". New York: Vintage Books, 1982 Ford, Edward. "The Details of Modern Architecture". Cambridge, MA: The MIT Press, 1963 Freedman, Donald. "Boston Architecture". Cambridge, MA: The Boston Society of Architects, 1970. Tufal, A., (1996). Donoghue v Stevenson [1932] AC 562, HL Read More