Binding and Persuasive Precedents - Assignment Example

Law This discussion must of course possess a conceptual framework, so that one can be reasonably assured that the reader will be on the same page. In an attempt to establishing this framework, I think it would be appropriate to establish a working definition for the word “precedent”. It is the collective accumulation of previously announced principles, which any given judge will take into consideration as they attempt to interpret the law. In a common law system, such as that practiced in the UK, the judges adherence to the precedent is pivotal to reaching a legal analysis. What are the requisites necessary to qualify a given principle as a precedent? The principle or issue in question must be a new one, or the concept must represent an adjustment of a specific law. There are instances when the decision which has been handed down, has such an impact on the law, until the new ruling may be classified as a landmark decision. Albeit, the courts may be the venue of last resort in dispute resolution, the courts must possess a point of beginning. Within the common law system, the beginning point is the precedent.- which has chronicled cases from the past. This is the record which states how past cases have been decided. The use of precedents serve a multiple purpose within the court system; it plays a role of enhancing efficiency in reaching judicial decisions, and most importantly it fosters a continuum of even handed justice, in that all cases which possess similar principles, will usually be assured a similar result. This concept was not a practice among the British House of Lords until London Street Tramways v. London County Council.1 This case paved the way for the establishment of precedent in Britain. After a ruling by the House of Lords, the decision would stand until or unless Parliament instituted change via statute. The reasoning which was applied in London Tramways prevailed for more than one hundred and sixty-six years, until Ridge v. Baldwin, 2 This decision took quite the opposite position (a more enlightened principle prevailed), than was adopted by the court in Nakkuda Ali v. Jayaratne,3 where an appeal was denied on the basis that a duty was not owed the appealant for prior notification. Whereas when the court overturned the Nakkuda holding in Ridge, the court then decided that a duty was owed on prior notification. In Ridge, the court stated that the statute, “impliedly entitled to prior notice”, concerning the allegations leveled against him, and he should be permitted to address those charges, and not be summarily dismissed. Also, the court completely reversed its stand on what it perceived natural justice to be, as they infused reasonableness into their description by stating, what the rights of an individual should be.This reasoning was incorporated and the points of law or the ratio decidendi which were found to be erroneous in Nakkuda were (i) that certiorari would issue only to an authority that was required to follow a procedure analogous to the judicial in arriving at its decision and (ii) the Controller was not determining a question affecting the rights of subjects but was merely taking executive action to withdraw a privilege.4 This is a clear indication of how the common law system, in the utilization of precedent fosters an environment where the law, remains fluid and provides the allowances which are necessary to make necessary adjustments to align itself with the reasonableness of the time.The concept on which a precedent is formulated allows for the intervention of diversity, and changes in the social climate, which precludes the law from remaining rigid. Binding and persuasive precedents Also know as mandatory precedent – and given to the explicit meaning of the alternative term of reference, it is a group of principles or laws when in the analysis of a specific case, these principles or laws must always be followed by the jurist handing down the holding of the court. The decisions which are rendered in a higher court must always be adhered to by a lower court. The decisions made by lower court, are not binding on similar courts. The decisions of lower courts, partial due to the fact that judges have a range of discretion, will vary from court to court or judge to judge. In a normal form of progression, the decisions which are rendered in lower courts, are not binding on higher courts.It should be noted that, the enabling feature of a binding precedent, is that it is a reported case. Additionally, there must be special conditions prevailing; the principle which is being put forward to establish the binding precedent must not be one which has surfaced in another situation or case. A barrister can advance the validity of the presence of a binding precedent whenever the barrister is willing to offer solid assurances on the veracity of the principle. In the event that the barrister is successful in convincing the jurist on the inclusive nature of the binding authority of the case, and if the court has granted leave. In that there is a considerable amount of discreation which is afforded judges in lower courts, the establishment of a binding precedent can only be established in a decision, which is held by a higher court. In 1861, The House of Lords, in Beamish v. Beamish,5 decided that decisions which were made by the House would be binding on all future cases in other courts, and that the House of Lords themselves would be obliged to follow the dictates of their former decisions. This decision obviously did not provide the legal system with any room for maneuvering. It served to lock the law into a previously defined box, which precluded growth or legal expansionism.Unfortunately, the system wallowed in this legal quagmire for more than 101 years, with no appreciable change or growth in the law. Fortunately, in 1966, Parliament recognized the need for the legal system to adapt to the changing social conditions in England. In 1966, Parliament enacted the Practice Statement,6 which gave the House of Lords the authority and power to overrule previous decisions, which they felt were erroneous. Even with this authority in place, the House of Lords was particularly cautious about reviewing and changing its previous rulings. It is clear that they did not care to remotely project a climate of lawlessness. The House of Lords had a binding precedent which existed in the case of R v.Caldwell [1981]7. The House did not overrule the decision in Caldwell until it heard the case of R v. G & R 20038 The decision which the House of Lords reached in R v. G & R, was in effect a landmark decision, in that it saw the high court go on to establish the guilty mind concept. This consisted of making a psychological assessment of the mind of the alleged perpetrator, balanced against what a reasonable person would do. This assessment was to be conducted without due consideration to what the prevailing state of mind of the perpetrator during the incident. Persuasive precedents These precedents can be determined as relevant and useful, however, they are not mandatory. These cases consist primarily of those which have been decided in lower courts, other parallel systems, or ny higher courts, and peers. Persuasive precedents are commonly referred to as persuasive authority, and they take on form in writing, and they normally possess a likeness to the case which is being considered to the court. Persuasive precedents are not binding in the English common law system. Albeit, persuasive precedents originate from a number of different sources; and in view of the discretion of judges, who are allowed to use persuasive precedents as a guide, it is sometimes difficult to determine the ratio decidendi, both due to the volume and variance in decisions.In any event, statement of law are the only entities which are binding. Any other entity contained therein, all other matters are, “incidental”, or obiter dictum. In the case of Rondel v. Worley9, if the precedent or statute was previously overlooked, and not explicitly mentioned to the court prior to its decision, then the precedent will be non- binding. Moreover, if there is a material difference in the cases, then the court can elect not to be bound by the precedent. The circumstances could be persuasive, but it does not meet all of the requisites, so it will not be binding. English courts may also rely upon persuasive precedent which are non-binding which have emanated in other in other common law countries, such as the United states, Canada, and New Zealand. Whenever a lone judge in a tribunal disagrees with the majority opinion of the group, that judge is labeled as a dissenting judge. In a subsequent case, another lone judge, can agree with the dissent of the judge in the case of first instance. The manner in which the law itself is structured, dictates that there is absolute parity. Consequently, a judge can only overturn a decision from a court which is lower, or from a court on the same hierarchical status where he sits as a jurist. Persuasive precedents also emanate from horizontal courts, which dictate that due consideration will only be given to those which are generated in a parallel, or lower.court. The presence of treatsies. restatements and law review articles, play an extremely prominent role in the shaping and influence of common law. It is generally felt that custom in some instances can and usually so embedded in the English system until it has been known to take on the form of law. This situation of custom is so engrained until there need not have ever been a case which had been decided on the same issues, but due to its degree of acceptance in the legal community-at-large, jurists have been known to give credence to these types of precedents in their deliberations. Distinguish Law There are customarily two formal ways which are pursued to distinguish law. It is either passed along in a judicial decision, or as an argument presented by a barrister in a court brief, which is in support of a particular legal outcome. This is essential an argument to challenge the validity of a previous decision held by a court, as not being qualified as a precedent. Of course, since a binding precedent is comprised of new issues or new law, the argument would seek to prove that neither variable is existent in the previous decision being challenged. Bibliography London Street Tramways v. London County Council [1898] AC 375 Ridge v. Baldwin (1964) AC 40 Nakkuda Ali v. Jayarante (1951) AC 66 Ibid Beamish v. Beamish 1861 9 HL C 274 (1) The Practice Statement of 1866 R v. Caldwell All ER 061 1981 R v. G & R 2003 Rondel v. Worley [1969] 1 AC 191 . Read More