The Docterine of Precedent: Case Law and Legislation - Term Paper Example

Doctrine of Precedents: Case Law and Legislation “Let it not be thought … that I am against the doctrine of precedent. I am not. It is the foundation of our system of case law …. All that I am against is its too rigid application – a rigidity that insists that a bad precedent must necessarily be followed.” (Denning LJ, The Discipline of Law). Society is continuously changing albeit gradually and slowly. The law must try its best to keep in accord with modern life and thought. Lord Denning in the above passage is not opposed to the application of the doctrine of precedent. He rather resists the rigidity of its applications. He advocates the relaxation of the doctrine to adapt to the changing norms. His critics suggest that by proposing the relaxation of the doctrine, Lord Denning has overstepped on the limits of what kind of law reform is thought to be proper for the courts to undertake. Precedents are decisions made by higher courts which serve as models for later decisions by the lower courts (Buck, 2006). It is a means of “applying lessons of the past to solve problems of the present and future” (Cappalli, 1998). In everyday life we tend to consider precedent, or our past experiences, to help us decide and create rules, whether we do so knowingly or unknowingly. We attempt to bring some stability to our actions so that we will be reasonable in our transactions with others. Similar notions are present in judicial systems around the world, whether it is grounded in the civil law, the common law, or some other tradition. As such, precedent creates certainty and stability. It is just a matter of how these systems place value to precedents. Judicial precedents are the most significant element of case law as it is the way by which judges make laws for the guidance of others in the future. In sitting in a case, a judge analyzes similar cases and if the facts and the laws are alike, the judge will have to follow the said precedent laid down by the court. It commands judges to apply the law as it has been set out in one prior case when the prior decision was made by a court that is higher than, and sometimes equal to, the court rendering the present decision (Buck, 2006). If a precedent was made by a court of equal or higher status to the court deciding the new case then the judge should follow the rule established in an earlier case or known as the doctrine of stare decisis (stand by what has been decided) (English and European Legal System, n.d.). The doctrine of precedents not only depends on judges following principles from past cases but also depends on the existence of a hierarchy of courts. For instance, The House of Lords is the highest court in the land and binds all courts below it in the hierarchy (English and European Legal System, n.d.). However, decisions of the European Court of Justice are at times binding on all courts in England and Wales depending on certain circumstances. The Court of Appeals, on the other hand, is bound by the decisions of the House of Lords and the ECJ. There are only two instances where COA can depart from following precedents set by the highest courts. One is when past decision is inconsistent from European Union Law and the other is when decision made is without reference to proper authority (English and European Legal System, n.d.). Divisional courts of the high court they are bound by all the courts above them and bind courts below them. Crown courts are bound to follow the decisions by the HOL, COA and the high court. Inferior courts must follow the decision of high court and they don’t create precedents. With all these things in mind, the doctrine of precedents creates legal issues that have been debated for decades. Is it advantageous to relax the doctrine of precedents or it is more burdensome to do so? Should the rigid application of the doctrine of precedents be followed to its letter? In order to scrutinize the rationalizations for the doctrine of precedent, it is best to know the consequences of espousing such a system. The most palpable outcome is that a decision maker hindered by precedent will sometimes feel coerced to make a hasty decision contrary to the one he would have made had there been no precedent to be followed (McAffee, 1995). A rule of precedent tells a current legislator to follow the decision in a previous similar case. Or even if there is no current precedent, the legislator must be aware of that future decision makers as well will treat his decision as precedent, a recognition that will constrain the range of possible decisions about the case at hand. Going to the advantages of the doctrine, precedents creates legal certainty, flexibility and predictability in the development of law that it generates. It emphasizes the ideal of justice in treating like cases alike. Judges can likewise influence the common law provided, with a prospect of developing a law in a particular areas without waiting for parliament to enact legislation. Judges can, however, be subsequently overruled or distinguished the decision whether it is applicable or simply not applicable to the instant case. The doctrine also offers a significant means for an orderly, rational development of principles which will guide courts and law practice. The doctrine is also dependent upon, and assists in defining, court hierarchies (Buck, 2006). Nonetheless, the doctrine of precedents is not without flaws. There are sometimes the possibilities of illogical distinguishing where the law in relation to certain area may become rigid on the basis of “wrongful” precedent resulting to previous injustices being perpetuated. Rigid applications of the doctrine hinder development of law. It can also cause unconstitutionality issue as it violates the separation of power as the judiciary is transgressing in its role by making laws rather than confining themselves in applying and interpreting them. It also creates uncertainty because the doctrine of stare decisis is weakened by absolute number of cases that have been reported. This improbability is augmented by the ability of the judiciary to select which authority to follow. In sum, by taking into consideration the advantages and disadvantages of the doctrine of precedent, it is always best to let the law or decision adapt to the changing circumstances. Flexibility and certainty can create stability in a society. However, according to McAffee, courts ought to be hesitant in overruling precedents that are: (1) proven and long-established; (2) the result of the carefully considered judgment of all three branches of government; and (3) based upon the fundamental values of the sovereign people. Under such situations, it can be argued that the case should be terribly inappropriate before the courts should even decide whether to overrule such a precedent (McAffee, 1995). As Lord Denning opined, “"[T]he principles of law laid down by the Judges in the 19th century--however suited to social conditions of that time--are not suited to the social necessities and social opinion of the 20th century. They should be molded and shaped to meet the needs and opinion of today" (Denning, 1979). A precedent may not be considered wrong, but nevertheless should not be followed, if it can be found that factual circumstances have evolved since it was previously decided. Similarly, a precedent, although unmistakably settled, should not be followed where related legal principles have changed since the precedent was first determined. Further, a precedent may not be followed if it is found to be per incuriam. A decision may be held to be per incuriam where relevant statutory provisions, or binding case law authority, have been overlooked or misinterpreted in arriving at the holding in the precedent (McAffee, 1995). Likewise, a precedent may be held to be wrongful precedent, and overruling it is justifiable, where it is found to be practically not viable. Case Law and Legislations “Case law refers to the creation and refinement of law in the course of judicial decisions. Legislation in its various guises … [is increasingly important] … in today’s society, but even allowing for this, and the fact that case law can be overturned by legislation, the United Kingdom is still a common law system, and the importance and effectiveness of judicial creativity and common law principles and practices cannot be, discounted”. (Slapper and Kelly, The English Legal System, 6th Edition (2003) p. 68). Civil law is described as that legal tradition which originated in Roman law, and consequently developed in Europe and around the world. Civil law is a well-systematized and structured and relies on declarations of broad and general principles. Common law is defined the legal tradition that developed in England from the eleventh century onwards. Its principles came mostly in part from reported judgments, usually by the higher courts, in relation to certain situations arising in disputes which courts have adjudicated. The common law is usually much more detailed in its prescriptions than the civil law. Common law is the foundation of private law, not only for England, Wales and Ireland, but also in forty-nine U.S. states, nine Canadian provinces and in most countries which first received that law as colonies of the British Empire and which, in many cases, have preserved it as independent States of the British Commonwealth (Beatson, 1991). On the other hand, statutory law, or law found in legislation other than civil codes, is basic to both the civil and common law. In common law jurisdictions, most rules are found in the jurisprudence and statutes complete them. In civil law jurisdictions, the important principles are stated in the code, while the statutes complete them (Tetley, 2000). Therefore, the significance of statutes in common law systems should not be ignored since nearly every branch of the common law is affected by statute. Particularly, whereas the code represents the "default" principle in civil law systems, the common law principle is the "default" rule in common law jurisdictions. Therefore, statutes in common law systems are not considered as a basis of principle of the case law development. Statute is even widely contemplated to be immaterial to the development of the common law (Beatson, 2001). There seems to be an essential difference between the role of statutes and the role of codes. The difference may not be as elemental as it appears, and that the role of statute in common law system is not in fact as it is often presented to be. Although the common law represents itself as a fragmented system with different and independent sources of law, judge-made principles, themselves divided into common law and equitable principles, and statutory rules, the aim is to demonstrate that the law in common law jurisdictions has greater integrity (Beatson, 2001). One can only do this by an examination of how statute operates in particular cases. The origin of statutes are said to be in policy and not principle so that it is not possible to reason by analogy from statutory provision to common law or even, in some cases, from one statutory provision to another. According to Allan, “the common law is greater to statute for it being a principled, although changing, framework with no predetermined (stipulated) boundaries into which legislation must be fitted, whereas statutes are enacted rules "whose compass is necessarily determined by [their] enacted terms" (Beatson, 1991). So, for Allan, while statutes are framed with a particular view of the common law in mind and, to this extent are affected by the common law, the common law, with its deeper principled roots, remains unaffected by the legislative manifestation of whatever fashion is current at the time a statute is enacted. Common law principle is more likely to so infuse statute where the statutory regime operates in territory which has been well-colonized by the common law; where it affects property and contractual rights or personal liberty. It is also more likely to so infuse a statutory regime where the statutory language uses common law concepts such as "trespass", "unjust enrichment", "property", or "consideration". It is less likely to do so where "new" rights and interests are being created and regulated; whether for purposes of social welfare, or economic efficiency, or any other objective (Beatson, 1991). As to the supremacy of the Parliament, Professor Dicey once said: “Parliament has the right to make or unmake any law whatsoever and ... that no person or body is recognized as having the right to override or set aside the legislation of Parliament" (Elliott, 2004). Judicial deference to Parliament is a wholly admirable attribute. The courts should not transgress upon the Parliament's legislative role. If they do so they in effect has expanded their own judicial role and prejudice the fragile balance between the two organs of government. Respect for the separate roles of Parliament and the courts, however, can be accomplished without compromising the judicial function of interpreting and determining the law. Indeed, the fundamental constitutional principle of judicial independence exists to ensure that this function is impartially and fearlessly exercised. Just as pressure from any other branch of government must be resisted, so too, in being judicially circumspect to the legislative primacy of Parliament, the courts must guard against being too sensitive to the supposed reaction of that institution when exercising the judicial function. It is noteworthy to say that law is never "complete" but must be "completed," in each and every controversy brought into court, by a judge who picks the governing rule and subsumes the material case facts under it (Cappalli, 1998). Within the law, the solution of a legally cognizable controversy is always unclear, needing to be actualized by the exercise of judicial judgment. Although certain law does not come into existence until the moment of actual decision, full-bodied legal systems with ample codes, statutes, precedents, and developed legal methodology provide superior answers to legal questions which arise. Only in this sense of superior answers can legal systems be characterized as flawless. Only in this relative sense can law be considered "certain" and "complete" (Cappalli, 1998). One longs for absoluteness and finds, in the domain of law, only a broad continuum between "easy" and "hard" cases, the difference being in the respective amounts of resources and energy judges must employ to extract superior answers to problems presented in court. With their overt recognition and acceptance of judicial judgment and their full use of judicial precedents as a resource to resolve cases, systems employing case law seem to offer, in comparison to civil law methodology, a more honest jurisprudence and a better methodology in the day to day work of courts. As a final note, common law adjudication, slowly taking shape through the accumulation of decisions and explanatory principles, sanctions a continuity of legal development based on the demands of justice in individual cases. It was law in touch with reality, and self-consciously so. Where the reason for the creation of the law ceases, the law itself ceases to exist. As society evolved, so must the law. It is the role of judges to keep the law up to date and to apply the law as appropriate in each particular case. References Beatson, J. (1991). The Common Law Today. 78-88 Journal of Business Law. Beatson, J. (2001). The Role of Statute in the Development of Common Law Doctrine. 117 Law Quarterly Review, 247-272. Buck, Trevor (2006). Precedent in Tribunals and the Development of Principles. 25 Civil Justice Quarterly, 458-484. Cappalli, Richard B. (1998). At the Point of Decision: The Common Law's Advantage Over the Civil Law. 12 Temple International and Comparative Law Journal 87. Denning, LJ (1979). The Discipline of Law. Elliott, Mark (2004). United Kingdom: Parliamentary Sovereignty Under Pressure. 2 International Journal of Constitutional Law 545. English and European Legal System: Equity and Common Law. Retrieved from http://hometown.aol.co.uk/shaf1414/Doc6.htm Harris, B.V (2002). Final Appellate Courts Overruling Their Own "Wrong" Precedents: The Ongoing Search for Principle. 118 Law Quarterly Review, 408-427. McAffee, Thomas B. (1995). Brown and the Doctrine of Precedent: A Concurring Opinion. 20 Southern Illinois University Law Journal 99. Slapper and Kelly (2003). The English Legal System, 6th ed. Tetley, William (1999). Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified). 60 Louisiana Law Review 677. Read More