Precedents and Statutory Interpretation - Essay Example

Precedents and Sta y Interpretation Explain the principal elements of Stare Decisis Stare decisis is basically adoctrine of the English legal system and is used in the legal fraternity to imply that set standards must not be disregarded by courts (Hasnas 98). Essentially, the doctrine dictates that the courts are to uphold and follow previous decisions. Therefore, when a court makes a decision that settles a matter, it forms a precedent which should be considered by judges in making decisions in future cases. This principle makes previous judicial decisions formally binding (Nelson 116). However, the underlying element is that the previous decisions must have been made by a court of similar or higher jurisdiction and must also bear factual similarities to the present case before a court. This means that if a court establishes an applicable principle of law that is found relevant in future cases, it can be used by itself and lower courts in the event that the facts are deemed substantially similar. The stare decisis principle, therefore, affords precedential value to previous court decisions in the spheres of well-established factual and geographical limits. A higher court’s decision in the same provincial jurisdiction will act on a lower court as binding authority if they are within the same jurisdiction. A decision from any other court will only serve as persuasive authority, the degree of which will be determined by that jurisdiction’s nature and the level of the court that set the precedent in the other jurisdiction. Another principle element of stare decisis is that the precedent (although not mandatory) needs to be recent enough to avoid being obsolete, which stems from the assumption that more recent cases may be more reliable as authority for certain prepositions (Sinclair 364). Basically, the elements of stare decisis aim at settling similar scenarios in a similar manner. For example, it translates into injustice when a case is decided in a certain way against a defendant and later decided in a different way against the same person, say, when he becomes the plaintiff. Explain the operation of precedents in the hierarchy of the courts (Practice statement in the House of Lords) If the hierarchy of English courts is to remain, so must the doctrine of binding precedent, since the two concepts are inseparable. When the law on a particular point can be settled by a single decision, then the highest tier court will have the final word. Once decided, all the courts in the tier must follow such decisions, regardless of whether they believe the decisions are mistaken or not (Shell 93). A hierarchy of courts is a fundamental principle on which judicial precedent operates. In courts, judges make case law either by interpreting statutes when there is a new case before them. However, the law-making power of courts is also limited through the precedent doctrine and court hierarchy. The House of Lords is essentially bound by the European Court of Justice’s decisions, but by virtue of being England’s highest appeal court, the decisions it makes will bind every other English court. Briefly, the hierarchy of courts can be outlined as The European Court of Justice; The House of Lords; The court of Appeal; High Court; Crown Court; County Court; and Magistrates’ Court. In its own capacity, prior to 1966, its own decisions in previous cases would also bind it to the doctrine of precedent, except in a situation where such decisions had been made per incuriam, or in error (Hayward 126). This phenomenon was established in 1898 (London Street Tramways vs London County Council) with the objective of ensuring there is certainty and fairness in law. In 1966, the Practice Statement granted the House of Lords authority to depart from previous decisions they had made. However, in terms of cases from the lower courts, the precedential value is not affected, but any other court that recognises the House of Lords (or Supreme Court) as the court of last resort will be bound by its decisions. Prior to the Practice Statement, creating new legislation regarding a matter before a court was the only way to avoid a binding precedent. Presently, judge-made laws occur in two areas, which are Common Law and Judicial Interpretation (Slapper 43). Under Common Law, judges make law in areas that have no applicable legislation, while Judicial Interpretation allows them to make laws that relate to their interpretations of words as they are used in the legislation. The hierarchy system is one way of ensuring that the judicial precedent system functions without causing conflicts by dictating that inferior courts are bound by the decisions of superior courts. Binding precedents are judgements that must be followed by other judges, which means that the ratio decidendi (or rationale to decide) used by a judge high up in the hierarchy binds future judges’ decisions. On the other hand, persuasive precedents do not have to be followed but rather, they only offer assistance to judges in decision making. Therefore, if a judge arrives at a decision by following a past non-binding decision, that decision is termed as persuasive (Martin 39). Persuasive precedents are usually in the form of decisions by lower courts, dissenting judges’ statements of law and decisions made by courts that are not within the English hierarchy. The general operation of the doctrine of precedent in the hierarchy of courts can be structured as follow; overrule; reverse; distinguish; Practice Statement of the House of Lords; and Court of Appeal. Critically appraise the advantages and disadvantages of the doctrine of precedent The doctrine of precedent has advantages in the form of preciseness, consistency, time-saving and certainty. However, it also presents disadvantages such as illogical reasoning, complexity and rigidity. Perhaps the most outstanding advantage of precedent is enhanced certainty in the law. Its existence helps judges to avoid mistakes they could otherwise have made in situations where decisions were based on their own discretion without additional guidance. However, a critical evaluation of this doctrine reveals that, unless brought for reconsideration before the House of Lords, past judicial mistakes may be perpetuated (Jones & Moran 83). It is also evident that certainty is a feature that cannot coexist with true flexibility in a system that has judge-made laws, since it cannot be predicted precisely how and when legal developments will happen. It also becomes too confusing when this advantage of certainty is watered down by too many case laws. The doctrine of precedent also has the capacity to prevent injustice by serving justice’s interests, since it would be unjust if a different decision in arrived at in another case of similar facts. However, when a previous decision is overruled, injustice may be caused to people who ordered their affairs by relying on that decision. What this line of thought brings about is that precedent is capable of producing justice in an individual case, but at the same time produce injustice in the general sense of such cases. Rigidity could be the most notable disadvantage of precedent. The slow development of law and failure to match the pace of social change and development are the obvious reasons to criticise the rigidity of precedent. Any rational society expects the law to meet its needs, which means problems will arise if the expectation is not met. Clearly, then, unless the law develops and grows, it may not comprehensively serve the society, resulting in sections of its subjects feeling that they are denied some of their crucial rights of redress. For example, the case law Robert Addie & Sons v Dumbreck of 1929 was overruled by the House of Lords in the 1972 British Railways Board vs Herrington (Garner 109). After being held in the 1929 case that a premises occupier is only liable if they recklessly or intentionally injured a trespasser, the decision was overruled in 1972 entail whether or not the occupier had humanely considered the trespassers’ safety. Therefore, in keeping with developments of time, the same defendant in 1929 could have been found liable in 1972. However, the time difference is so enormous that it could mean delayed justice. Explain the Literal, Golden and Mischief rules by highlighting various cases (Smith v Hughes) Statute law, which may be used to modify, overrule or extend current and existing common law meanings, is written and put in place via a legislature. Apart from these, Literal, Golden and Mischief rules can be used to create entirely new laws. Judges are afforded the most of discretion through the Mischief Rule. Using common law to determine how to justly interpret the statute, its objective is to rectify mischief. It is the rule most suitable to specific and ambiguous cases. Smith v Hughes [1960] E.R.859 can illustrate the concept of mischief, when prostitutes called potential clients from balconies rather than the streets, which was illegal as per the 1959 Street Offences Act (Loveland 24). The judge held that the act’s intention was to cover the prostitutes from the mischief of harassment. In relations to statutes as exemplified by Duport Steel v Sirs (1980), literal rule forms the foundation of all court decisions, whereby judges, rather than interpreting any meaning, follow the statute’s exact wordings for a case. The implication is that a judge must not deviate from a word’s literal meaning even if there is a possibility of unjust outcomes. Hence, there is no room for interference by a judge’s own prejudices or opinions because parliamentary supremacy is respected and separation of power is upheld. Ultimately, litigation is reduced, certainty promoted and precision drafted. In the Golden Rule, the ordinary and grammatical sense of words must be adhered to. The exception is where such adherence would result in inconsistency, repugnance or absurdity with the rest of the legal machinery as seen in Adler v George (1964). In such a case, a judge may modify the ordinary and grammatical sense of words for the sole purpose of avoiding inconsistency (Barnett 69). Within the statutes, this facilitates the immediate correction of drafting errors. Works Cited Barnett, Hilaire. Constitutional & Administrative Law. London: Routledge-Cavendish, 2008. Print. Garner, Bryan. A Dictionary of Modern Legal Usage. London: Oxford University Press, 2001. Print. Hasnas, John. “Hayek, the Common Law and Fluid Drive.” New York University Journal of Law & Liberty 1.3 (2004): 93-108. Print. Hayward, Allison. “The Per Curium Opinion of Steele.” Cato Supreme Court Review 195.4 (2005): 124-9. Print. Jones, Bill and Moran, Michael. Politics UK. London: Pearson, 2007. Print. Loveland, Ian. Constitutional Law, Administrative Law and Human Rights. London: Oxford University Press, 2009. Print. Martin, Jacqueline. The English Legal System. 4th ed. London: Hodder Arnold, 2005. Print. Nelson, Caleb. “Stare Decisis and Demonstrably Erroneous Precedent.” Virginia Law Review Virginia Law Review 84.1 (2001): 114-18. Print. Sinclair, Michael. “Precedent, Super-Precedent.” George Mason Law Review 14.2 (2007): 363- 78. Shell, Donald. The House of Lords. Manchester: Manchester University Press, 2007. Print. Slapper, Garry and Kelly, David. The English Legal System. London: Routledge, 2008. Print. Read More