The System of Precedent - Essay Example

THE SYSTEM OF PRECEDENT IS ESSENTIAL TO BOTH THE WORKING OF THE ENGLISH LEGAL SYSTEM AND TO THE PROCESS OF JUDICIAL INTERPRETATION Introduction: Thedoctrine of binding precedent or stare decisis, according to Slapper; Kelly (2006), lies at the core of the English Legal System. The doctrine refers to the fact that within the hierarchical structure of the English courts, a decision of a higher court will be binding on a court below. The English Legal System works on an authoritative hierarchical structure, and functions with the help of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR). According to Cross, et al (1991), the only part of a previous case that is binding is the ratio decidendi (reason for deciding). Consideration of the structure of a typical judgement, will make the ratio decidendi clear. The contemporary English judge almost invariably gives reasons for his decision in a civil case: summarizes the evidence, announces his findings of fact, and reviews the arguments that have been addressed to him by counsel for each of the parties. If a point of law is raised, he often discusses a number of previous decisions. When there is a jury, the judge sums the evidence up to them, and bases his judgment on their findings of fact (p.39). An obiter dictum is a judicial opinion which has received less serious consideration than that devoted to a proposition of law, put forward as a reason for the decision (p.41). Gubby (2004: 20) states that obiter dicta are passing or incidental statements in a judicial opinion that do not form part of the ratio decidendi or binding element in a case. Discussion: The House of Lords stands at the summit of the English Court structure followed by the Court of Appeal in which it is necessary to consider its criminal and civil jurisdictions separately. Next in the hierarchy is the Divisional Court which must follow decisions of both the levels above it in the structure of the English Legal System; and similar to the House of Lords and the Court of Appeal is normally bound by its own previous decisions, with some exceptions in civil and criminal cases. Decisions by individual High Court judges are binding on courts inferior in the hierarchy, but not on other High Court judges. Although subject to binding precedent from superior courts, Crown Courts cannot create precedent, and their decisions can amount to persuasive authority at the most. The decisions of county courts and magistrates courts are never binding. An extensive and reliable reporting service to provide access to judicial decisions is required for the operation of the doctrine of binding precedent. If a judge decides that the facts in the case before him are very different from those of a case setting a precedent, he is at liberty to ignore the precedent and decide the case as he thinks fit (pp.54-55). Many legal systems throughout the world follow the doctrine of precedent says Hanson (2003). However, few keep to the concept of binding precedent as rigidly as the English Legal System (p.62) According to Hanson (2003), the phrase “Common Law” has various meanings, which vary according to context. All the laws made by judges relating to England and Wales are known as “common law” (pp. 30-31). The European Community’s legal system is deeply embedded in the civil system. In the English Law’s Common Law tradition, the legal theory underpinning the practical approach to decision making in the law courts is the declaratory theory. This means that a judge declares what the law is in his decision of a case. The case can then become an important precedent as it states the law, and determines when other courts must follow it. One case can determine and preset the law within the limits of the doctrine of precedent (p.156). Gubby (2004) states that the common law or case law refers to the decisions made by judges applying legal principles to the circumstances of the particular disputes before them. All civil systems are based in different ways on Roman law, where the legal theory position is that when a judge in a court makes a decision about the law, that decision is evidence of the law. In the English common law system, decisions of the courts are the law, rather than evidence of what it is thought to be. Through the system of precedent in the English Legal System, previous court cases and law cases are presented to the court as precedents. But this is not the case in the European Court of Justice (ECJ), where arguments consider other cases and other documents and practices in order to present what may seem appropriate principles of the law. English law is extremely flexible in the mouths of judges, despite its rigidly binding system of precedent (p.156). Fariss; Pauwels; Buckley (1999): statutes are the enactments of legislative bodies and are subject only to the limitations established by the constitution. They are a higher authority than cases, though judicial decisions often receive more attention. In areas of law that have not been defined by statute, the courts settle the issue using rules established by previous judicial decisions. For many years, common law or court made law constituted the only authority for many legal areas. Within the past fifty years, legislatures have enacted statutes in most areas of law. Most judicial decisions now involve applying or interpreting these statutes. Identifying the applicable statute is often the first step when locating primary source material (p.23). When using statutes it is essential to ensure that the law being researched is up to date (p.25). Methods of Judicial Interpretation: 1 (I) Doctrinal Approach: Follow Precedent: Principle of stare decisis: “Let the decision stand”. 1) New cases should be solved in the same way as old cases. 2) Follow precedent if similar facts in previous case. 3) Laws are more stable and predictable, so people know what to expect. Advantages: Principles are adopted and applied to cases with similar circumstances. Judges attempt to maintain internal consistency in decisions. Also, there is consistency and continuity in law. Disadvantages: Great efforts are required for finding similar past cases. It is also a very common approach and is used by judges in both majority and minority opinions. Judges can always decide that the facts of the case are different from the precedent, and accordingly work differently with the new case. 2 (II) Competing Interests: Prudential: 1) Practical application of judge’s decision on dealing with the case. 2) Which values deserved more protection? 3) Decision is based on individual cases, taking circumstances into consideration. 4) The judges recognize the implication of the decision. Disadvantages: Consistency cannot be maintained, precedent may not be taken into account. The judge’s decision is accepted. No standards are there for the judge to make his decision. There should be standards under which any judge would come to the same conclusion. Subjective opinion of judge Difference Between Prudential and Precedent Methods of Judicial Interpretation: Prudential: The particulars and criteria of the new case are more important. Precedent: Comparison with an old case with similar criteria as the new case is considered important. Conclusion: Our domestic law is enforceable by the courts of England and Wales, and sometimes throughout the United Kingdom (Eddey; Darbyshire 2001). It is seen that in the working of the English Legal System and in the process of judicial interpretation, the system of precedent plays a very important part. Using the system of precedent ensures the advantage of uniformity in legal case decisions and judgments. REFERENCES Cross, Sir Rupert; Harris, James William; Cross, Rupert. (1991), Precedent in English Law, Publisher: Oxford University Press. Eddey, Keith James; Darbyshire, Penny. (2001). Eddey and Darbyshire on the English Legal System, Publisher: Sweet and Maxwell. Fariss, Linda K.; Pauwels, Colleen Kristi; Buckley, Keith, (1999), Legal Research, Traditional Sources, New Technologies, Publisher: Phi Delta Kappa International. Gubby, Helen, (2004), English Legal Terminology: Legal Concepts in Language, Publisher: Boom uitgevers Den Haag. Hanson, LLB Sharon, (2003), Legal Method and Reasoning, Publisher: Routledge Cavendish. Slapper, Gary; Kelly, David (2006), The English Legal System, Publisher: Routledge Cavendish. Read More