The Doctrine of Precedent - Essay Example

Topic: Using case law and considering any advantages and disadvantages to what extent do the doctrine of precedent depend on the hierarchy of the court Introduction: The term ‘precedent’ is seen in the context of established judicial decisions. There is also another name for it, called the “stare decisis.” The fundamental aspect of precedent is that, Judges need to try cases on the strength of earlier decisions made. As a matter of practice, judges in lower courts need to observe the established precedents set by higher courts, and this establishes the hierarchy of decision-making. However, as the name suggests, ‘stare decis’ means “To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle.” (Stare decisis, 2010). The doctrine of precedent is also called as stare decisis, situated at the heart of the English lawful arrangement. It is a lawful rule by which adjudicators are obligated to admiration of the precedents created by previous judgment. This doctrine also refers to the information surrounded by the hierarchical construction of the English magistrates. A judgment made by the superior court will be connected to an inferior court in the hierarchy structure. In broad expressions, this denotes that when adjudicators attempt cases that will make sure to see if a similar circumstance appears before the court. If the precedent is placed by a court of equivalent or superior rank makes a new decision, and then the adjudicator in the current case should pursue or follow the rule of law founded in the previous case attended in the court. “It is noted that the doctrine of precedent depends for its operation upon the underlying principle that the courts form a hierarchy with each court standing in a definite position in relation to every other court. The structure of this hierarchy must now be considered for the purposes if the doctrine of precedent. Decisions of the highest courts are binding on lower courts.” (Doctrine of judicial precedent & its hierarchy of court, 2010). In most cases, it is deemed that a decision made by a higher court is a binding precedent, which a lower court cannot overrule. Also, a court should not upset its own precedents unless there is a valid reason to do so. This needs to be motivated by principles from similar and lower courts. Another aspect that needs to be considered is the extent to which equal or higher courts could set legal precedents or stare decisis. It is seen that, except in exceptional circumstances; judicial precedents may need to be observed, especially when the basic fabric, nature and character of referred cases are similar in nature. It is perhaps mandatory that the UK Court rulings are observed by lower courts and should be binding upon the judgments pronounced by lower courts for similar types of cases except in special circumstances when the court may be permitted to deviate, keeping in mind the case settings and the implications that it would bear upon the parties, to the dispute. However, this is not binding upon cases of lower courts or by courts of other states or countries. However, judicial pronouncements are not “inexonerable commands.” (Overruled: Stare decisis in the U S Supreme Court, 2009). The UK legal history is indeed replete with instances in which the courts have digressed from earlier judicial pronouncements and even overruled earlier decisions in terms of persuasive precedents which is of academic interest, which courts can infrequently overrule. There are two aspects in play for a precedent to be enforced. Firstly, the higher position of the courts needs to be accepted and secondly, an efficient system of law reporting should be in use. The law must strike a clean and equitable balance between clarity and firmness of previously decided cases and the need for flexibility and compartmentalization of case reaches obvious decisions for dissimilar case histories. Under the British legal system, in civil law judges consider case law in a similar way. But they are not bound to do so and, require consideration of the precedents in terms of principle. Their fellow judges decisions may sound convincing but are not enforceable. Under English legal system, judges are not justified to make their own decisions about the development or interpretations of the law. They may or may not be held by a decision reached in a previous case. Two facts are important in finding out whether a precedent is binding: 1) The position in the hierarchy of the court which decided the precedent relative to the position in the court in deciding the current case. 2) Whether the facts of the current case comes within in the scope of the principle of law in previous decisions. The law is also easier to find and to state that it is rationally prospective rather than based on the chance event of litigation, which may give rise to laws based on extreme or unusual situations or unevenly argued cases. Precede means that the judges have to place before consideration of the verdict the full details of the case history and other relating matters to the subject. Therefore, it could be argued that; in the absence of such matters and documents, the order of precedent may not be established. Therefore, records are a sine qua non or a legal necessity, which may need to be present to enforce legal pronouncements. Necessary documentary evidence may be needed before precedents that could be established. While the concept of precedent lays down the previous similar decision, it is necessary that the vital records are available for scrutiny purposes. The perspective of hearing judges is very important for establishing precedents. This is the kind of temperance and open-minded approach of judges in trying to understand and critique the facts of the case and how fair-mindedly could precedents be wisely and appropriately applied. However, there are also many areas wherein the UK Parliament has neither the time nor the inclination to interfere, and in these areas the law is what the courts rule. Although, it was habitual until relatively recent judges maintain the narrative that they were not ‘making’ law but merely ‘declaring’ what it had always been. This is because judges are not lawmakers but interpreters of law. The remedy of judicial review has to a certain extent allowed the courts to review decisions on a merit basis. In turn, this has raised to a level of consciousness that the judges are in some cases, reviewing the merit of actions based on legislative powers. There is a full consideration by Lord Goff of the judge’s powers to make new law in Kleinwort Benson v Lincoln City Council (1998) where the courts established a new principle that money paid under a mistake of law can be recovered. The facts of the case are: “In 1990 the payer makes a payment which would only have been due to the payee if the Court of Appeal decision was good law. The payer was advised that the Court of Appeal decision was good law. In 1997 this House overruled the Court of Appeal decision. Is the plaintiff entitled to recover the payment made in 1990 on the ground of mistake of law?” (House of Lords, 1998). Apparently, the HOL rescinding earlier and existing laws thought that this is possible and rules the plaintiff that was entitled to recover payments even when there is vitiation on basis of mistake of law. According to English law, “The Court of Appeal is bound by the House of Lords but is binding on all courts below it. Below the Court of Appeal, only the Divisional Courts and the High Court create precedent. Inferior courts, ie. And tribunals do not create precedent, but have to abide by the precedents set in higher courts.” (Smith 2001). Thus, it is seen that judicial precedents do have their advantages and disadvantages. While it can guide the jury in the assessment and comparative study of cases and also legalized documents that could defend the validations of courts, it cannot substitute the true spirit and temperance of law. The law itself can be equivocal and ambiguous at times. It is seen that in the case of Anderson v. Ryan (1985) AC 560, the House of Lords interpreted and held that a person cannot be charged with trying to handle stolen goods, if the goods were stolen ( known to the buyer), but “prosecution could not prove that it actually was” stolen.” (The Cambridge law journal, 1986). However, this decision of the House of Lords one year earlier (Anderton v Ryan [1985] AC 567; [1985] 2 All ER 355) had received great criticism. “Thus, “In R v Shivpuri the House of Lords changed its mind on whether it was possible to attempt to do the impossible. This is a rare example of the House of Lords overturning its own decisions simply because it felt the earlier decision was wrong.” (The doctrine of judicial precedent, 2006, p.9). The policy of judicial precedent is apprehended by the significance of case law in our structure. It is merely an appropriate rule of law choose in higher magistrates. It is applicable to each and every one of the upcoming cases, and is instantaneously operational. It must be differentiated from res judicata. In the case of res judicata, it denotes that, standing by a past judgment if not upturned on petition applicable in every magistrates, merely involving the parties to particular in a case and at the same time operates on one occasion where all petitions have been exhausted. “Precedents may be persuasive or binding. To be binding the precedent must: 1. Be contained within the ratio decidendi (i.e. the legal reason for deciding the case, for example: in a case the facts may be that a person made a gratuitous promise to unblock your drains, the ratio decidendi would be that a contract requires consideration), and 2. Be a decision made by a higher (or in certain cases, the same) court.” (Judicial precedent: Persuasive and binding precedents, n.d). There are mainly two theories of the doctrine of precedent. The primary theory is the declaratory theory. This theory affirms that the common rule does not vary in every case. The rule is simply restated other than inserted to the adjudicators is declaring the rule on the basis of the past judgment. The second theory is termed as the realistic theory. This theory states that, they do all rules that must initially arrive from anywhere and the abstraction of older principles is the creation of new law. In the United Kingdom, the House of Lords bind subordinate magistrates. Although its capability to leave from earlier judgments is broad, it uses this authority by means of huge discretion; pursuing rule set out in the Practice report of Judicial Precedent Act of 1966. Since one of the case that is Cherry case, others can originate a set of conditions whereby a judgment might be overruled.  1. “ Cessante ratione cessat ipsa lex (as in Miliangos) - If the reason ceases to exist so does the law – 2. If a new argument has been put forward by counsel (i.e. one that was not considered when the original decision was made) and it is accepted by the Lords. 3. Per incuriam - providing (Secretary of State for Trade and Industry v. Desai (1991)) that if the decision stood would lead to significant injustice or inconvenience in the administration of justice. 4. If a statute, although not expressly overruling the case forces the principle to be reconsidered.” (Judicial precedent: In individual courts: The house of lords, n.d). Another case called In C v. Director of Public Prosecutions 1995; Lord Lowry offered various guidelines for legal law creation. Some of these guidelines are given below: 1. The imposition of precautions should be careful where the resolution is uncertain or doubtful. 2. If Parliament has refused various chances to rectify the circumstances, the magistrates should be careful on the subject of doing so. 3. Disputed communal strategy substances are less appropriate for adjudicators than purely lawful troubles. 4. Basic policy should not be carelessly thrown aside. Doctrine of precedent have there own advantages and disadvantages too. Advantages: 1) Offers certainty in rule. 2) Adjudicators have apparent cases to pursue the further proceedings. 3) Lower magistrates pursue or follow superior magistrates. 4) It also guides to a methodical growth of the rule. 5) Case law of genuine circumstances, feasible statute rule and therefore law and codes are derived from daily living. 6) The law can build up. 7) Put aside time to keep away from needless litigation. Disadvantages: 1) There are a lot of cases that is tough for adjudicators to discover appropriate cases and also sometimes the reasoning may not be apparent. 2) Case law can merely modify if a genuine case law is brought. This necessitates somebody to have the cash (or the access to legal aid) to carry such cases. To obtain a case to the adjudicators is extremely expensive. 3) Sometimes bad decisions may occur. Such Bad judgments are perpetuated in view of the fact that lower magistrates must chase higher magistrates. 4) Inflexibility: The system is too inflexible and does not permit the law to build up an adequate amount. 5) Injustice: The strict policy of judicial precedent can generate unfairness in personal cases. 6) Slow expansion: The rule is slow to build up under the scheme of judicial precedent. The law or rule cannot be modified until a case on an exact spot of law arrives before one of the superior appellate magistrates. 7) Confusion: A large number of cases are reporting every year so that it is very much difficult to find the exact case and also it will lead to confusion in the mind of the adjudicators. “Civil court-The majority of minor civil cases are dealt with by the County Courts. More serious cases are heard in the first instance by one or other of the three divisions of the High Court. Appeals from both the County Court and the High Court are dealt with by the Court of Appeal – Civil Division, and subject to certain stringent conditions there may be a further appeal to the House of Lords, which is the final court of appeal.” (Judicial precedent and case law, 2006). Criminal courts’ small offences are dealt through by magistrates’ judges as of which there may be a petition to the Higher Court. More grave cases are dealt by means of initial instance, after a beginning enquiry in the magistrates’ benches by the Crown benches as of which there may be a petition to the Court of petition – Criminal dissection. “ R v Taylor(1950)2 KB 368 the court of appeal held that in ‘question involving the liberty of the subject’ if a full case is considered that ‘ the law has either been misapplied or misunderstood’ then it must reconsider the earlier decision. This rule was followed in R V Gould (1968) 1849and r v Newsome (1970) 2 QB 711.” (Tufal n.d, p.2). Conclusion: Doctrine of precedent is a lawful rule by which adjudicators are obligated to admiration of the precedents created by previous judgment. Faithfulness to precedent aids accomplishes two objectives of the lawful order. Firstly, it donates the preservation of a regime of steady rules. This steadiness offers predictability to the rule and gives a degree of safety for person rights. Secondly, it guarantees that the rule is build up only with reference to the varying perceptions of the society and therefore additions perfectly reproduces the rights and expectations of the society. Reference List Doctrine of judicial precedent & its hierarchy of court, 2010. [Online] Example Essays.Com. Available at: http://www.exampleessays.com/viewpaper/14277.html [Accessed 28 July 2010]. House of Lords, 1998. [Online] Parliament.UK. Available at: http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd981029/klein01.htm [Accessed 29 July 2010]. Judicial precedent and case law, 2006. [Online] Legal Directory.net-UK Legal Services. Available at: http://legal-directory.net/english-law/judicial-precedent-case-law.htm [Accessed 28 July 2010]. Judicial precedent: Persuasive and binding precedents, n.d. [Online] Available at: http://members.multimania.co.uk/lawnet/PRECED.HTM [Accessed 28 July 2010]. Overruled: Stare decisis in the U S Supreme Court, 2009. [Online] Rbs2.com. Available at: http://www.rbs2.com/overrule.pdf [Accessed 29 July 2010]. Smith, R., 2001. The doctrine of judicial precedent (case law). [Online] Available at: http://learningat.ke7.org.uk/socialsciences/5thlesson/Law/The%20Doctrine%20of%20Judicial%20Precedent%20-student.htm [Accessed 28 July 2010]. Stare decisis, 2010. [Online] The Lectric Law Library. Available at: http://www.lectlaw.com/def2/s065.htm [Accessed 29 July 2010]. The Cambridge law journal, 1986. [Online] Jostor. Available at: http://www.jstor.org/pss/4506910 [Accessed 28 July 2010]. The doctrine of judicial precedent, 2006. [Online] Available at: http://www.oup.com/uk/orc/bin/9780199282500/hollandwebb_chap05.pdf [Accessed 28 July 2010]. Tufal, A., n.d. Judicial precedent. [Online] Lawteacher.Co.UK, p.2. Available at: http://www.lawteacher.net/PDF/Judicial%20Precedent.pdf [Accessed 28 July 2010]. Read More