Advantages and Disadvantages of the Doctrine of Precedent - Essay Example

Doctrine of Precedent Introduction The doctrine of precedent has exerted considerable influence on the rulings made by judges. This is despite the fact that precedent does not bind judges to the same extent as statutes. It is a longstanding fact that the doctrine of precedent has been an integral component of English law. It has been contended by Duxbury that flexibility and stability are both necessary for the common law system (Waddams, 2009, p. 132). This requirement has been fulfilled by precedent. The common law legal system is based on precedent, which makes it possible to bring about the amalgamation of law and justice. The majority of those who support precedent tend to overlook the justice seeking benefit provided by this concept, and are inclined to praise its practical value (Bader & Cleveland, 2011, p. 35). As such, precedent is the intersection of law and justice. The principal value of precedent arises not from its capacity to commit judges to some specific course of action. This value is due to its capability to generate constraint, while permitting a certain amount of discretion. The common law rests on a strong rebuttable presumption that earlier decisions are to be followed (Waddams, 2009, p. 132). It does not require an inviolable presumption in this regard. The contention that stare decisis leads to a rebuttable presumption has been deemed to be incomplete in some quarters. This is due to the fact that there is no indication regarding the strength of the presumption. Moreover, there is an absence of precision regarding the circumstances and reasons for being rebutted (Waddams, 2009, p. 133). Advantages of the Doctrine of Precedent Consistency and Certainty This enables citizens to conduct their affairs in a manner that is certain and predictable under the law. Speculative traders could benefit significantly as they would be in a position to determine the stance to be adopted. For instance, the French Civil Code was aimed at protecting French citizens from the prejudicial behaviour of the courts of the Old Regime. Similarly, the fear and chaos prior to and during World War II, was to some extent due to the destruction of certainty and consistency of the law (Luyulei, 2011). Flexibility For every conceivable situation, precedent has the capacity to provide an analogy. In conjunction with the flexibility possessed by the doctrines of distinguishing and ratio decidendi, the courts are enabled to make incremental adjustments to the law, in order to satisfy the requirements of justice (Luyulei, 2011). Logical Evolution Due to precedence, a case builds upon the other, and the law experiences logical development. Moreover, such development is not merely theoretical, but takes place on the basis of decisions in real cases. The gifted among the judiciary may make suitable changes to the law. The other judges may either promote or censure these adjustments to the law, by accepting or rejecting them. In this manner, the common law evolves (Luyulei, 2011). Objective Acceptance Precedent prevents judges from indulging in personal prejudices, at the time of ruling in a case. Moreover, decisions of the courts are rendered more transparent and rules that are objectively acceptable are created (Mitchell & Dadhania, 2003, p. 75). Response to Factual Situations With regard to legislation, precedent enjoys a clear advantage. This is on account of the fact that precedent deals with what has already taken place. The result is that the law can be applied in a manner that is practical as well as thorough (Mitchell & Dadhania, 2003, p. 75). Growth of Laws with Scarce Statutory Intervention Precedent has made it possible for large segments of the law to develop with little statutory intervention. One such example is provided by the laws relating to contract and tort (Mitchell & Dadhania, 2003, p. 76). Creation of Original Precedents Original precedents can be generated to address intricate and novel legal quandaries. An important instance is provided by the ruling in Airedale NHS Trust v Bland, which determined that life support systems could be withdrawn with regard to a patient who was in a permanent vegetative state of existence (Mitchell & Dadhania, 2003, p. 76). Growth Based on Practical Experience Precedence promotes legal development from the perspective of practical experience (Mitchell & Dadhania, 2003, p. 76). The following case law reveals the fact that the lower courts are bound by the decisions of the superior courts. In accordance with the decision in Young v Bristol Aeroplane Co, the decisions of the Court of Appeal are binding on the lower courts. As depicted in R v Taylor, the Court of Appeal (Criminal Division) is bound by the decision of the House of Lords, its own previous rulings, and the judgements of the erstwhile Court of Criminal Appeal. In the event of the erroneous application of some provision of the law, the Court of Appeal can reconsider its previous decision, as was held in R v Taylor. However, in R v Parole Board, the Court of Appeal ruled that the doctrine of precedent could not be applied, if there was a possibility of causing injustice. Disadvantages of the Doctrine of Precedent The doctrine of precedent, despite its promotion of certainty and consistency, is not devoid of disadvantages. Unjust Judgment For instance, the judge of lower court could be compelled to pronounce a judgment that he regards as being unjust. Binding precedent has the capacity to bring about such undesirable outcomes. Furthermore, a rule that is apparently unjust could prevail until a court that is higher in the judicial hierarchy obtains an opportunity to review it (Williams, 1998, p. 2). Uncertainty Moreover, the doctrine of precedent does not result in certainty in all the cases, this is due to the fact that statement made in previous cases may not be unambiguous. In addition, even if the statements in a previous case were clear, it may be unclear as to whether these statements were part of the ratio decidendi of the case or were obiter dicta (Williams, 1998, p. 2). Differences of Opinion When it comes to appellate cases, three judges hear them in the state Supreme Courts, whereas five judges attend to such cases in the High Court. In general, more than one judgment is delivered, even though judges may agree to a major extent with the other judges (Williams, 1998, p. 2). It is a frequent occurrence for differences of opinion to exist in the rulings of judges. Such differences could have a critical impact upon subsequent cases. From this it follows that although the lower courts have to be bound by the decisions of the higher courts, it is not always clear as to what is binding (Williams, 1998, p. 2). Erosion of Confidence Whenever, a judge relies to a major extent on precedent, it indicates that he has not been able to come up with other solutions. Moreover, precedent curtails imaginative thinking on the part of the judge. With the passage of time, a gradual erosion of confidence in a judge who relies exclusively on precedence could transpire (Duxbury, 2008, p. 2). Decisions of the international tribunals do not constitute a direct source of law, with regard to international adjudications, in the absence of practices that approximate to the common law doctrine of precedent. Judicial precedence has considerable influence as it is the impartial and considered statement of eminent jurists. Moreover, precedence is always with regard to some problem that had actually arisen (Cryer, 2006, p. 245). Although, a court cannot create law, its act of recognising a rule of customary international law, could bring about the crystallisation of that law (Cryer, 2006, p. 246). Consequently, one of the functions of a lower court is to discover the ratio decidendi of a precedent. The lower court judge should make a serious attempt to interpret the higher court’s ruling. On the other hand, such judges could avoid such effort and either apply the precedent or state that it does not apply to the case on hand. In the latter situation, the lower court judge has to demonstrate that the differences between the present and previous case are so drastic that the ratio will be irrelevant (Scruton, 2007). Prior to the institution of the Supreme Court, the court of first instance in the UK was the House of Lords. In London Street Tramways v London County Council, the rule that their Lordships are to be bound by their earlier decisions was established. This caused them to reject a plea to overrule their decision in Shaw v DPP, while deciding the case of Knuller Publishing and Promotions Ltd v DPP. However, this undesirable situation changed with the ruling in Miliangos v George Frank, in which the House of Lords departed from its previous decisions. Moreover, in R v Shivpuri, their Lordships set aside their ruling in Anderton v Ryan. As such, sole reliance on precedence could be an indication of reluctance to seriously assess what is at stake in a particular case. As a matter of fact, the exemplary members of the judiciary have repeatedly emphasised that adjudication entails caution as well as courage (Duxbury, 2008, p. 2). Moreover, on occasion, the decision that garners attention and respect is the one that rejects what had been decided in the past. References Airedale NHS Trust v Bland (1993) AC 789. Anderton v Ryan (1985) AC 560. Bader, W. D. & Cleveland, D. R., 2011. Precedent and Justice. Duquesne law review, 49(1), pp. 35 – 60. Cryer, R., 2006. Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study. Journal of Conflict & Security Law, 11(2), pp. 239 – 263. Duxbury, N., 2008. The Nature and Authority of Precedent. Cambridge University Press. Knuller (Publishing, Printing and Promotions) Ltd v DPP (1973) AC 435. London Street Tramways v London County Council (1898) AC 375. Luyulei, 2011. Principle of Precedent: The Heart of Common Law System. [online] Available at: [Accessed 26 January 2013]. Miliangos v George Frank Textiles Ltd (1975) 3 All ER 801. Mitchell, A. & Dadhania, M., 2003. As Level Law.Routledge. R v Parole Board, Ex p Wilson (1992) QB 740. R v Shivpuri (1987) AC 1. R v Taylor (1950) 2 KB 368. Scruton, R., 2007. precedent. [online] Available at: [Accessed 27 January 2013]. Shaw v DPP (1962) AC 220. Waddams, S., 2009. Authority, Precedent, and Principle. University of Toronto Law Journal, 59(1), pp. 127 – 133. Williams, C. R., 1998. The theory and practice of precedent. Legaldate, 10(2), pp. 1 – 5. Young v Bristol Aeroplane Co Ltd (1944) KB 718 CA. Read More