Australian Law - Stare Decisis - Essay Example

Name Tutor Course Date Introduction to Australian law Every society, in whatever context, desires order in its fullness. This pursuit is usually embedded on the foundation of a good and well set up law enforcement system. The one thing that facilitates the realization of peace and harmony within these settings is good and holistic law. If the set up law is wholesome to see that all institutions as well as individuals are well represented, then the elusive order can become a firm reality. Otherwise, what ensues is an array of misconstrued life coupled mistrust among the various stakeholders. This law that is very key and significant has varied sources. It could be based on the fruits of the parliamentary process as a normal legislation mainly the Constitution and the numerous Acts of Parliament (Zander 12-14). It could also result from the case law as a whole from the courts in which case the decided cases form the basis of consideration. In addition to this, there are other sources including customary and religious laws as well as the common law of the United Kingdom. In Australia, common law forms the basis of the whole law while the Constitution is the supreme piece of legislation (Miller et al 45-57). All other legislations including the statutes ought to be in tandem with the provisions of this very Constitution or else they shall be declared void to the extent of their inconsistency. With this basic, yet important, introduction to law, it is vital now to narrow down to the core of this paper. This paper will delve on the case law with utmost focus on precedents made and the ratio decidendi coupled with the stare decisis in those rulings. It shall jumpstart by substantiating the ground for understanding what a ruling entails and how it can be overruled by higher courts. Further, the paper shall conclusively outline the justification for stare decisis as a doctrine in law. Precedent Whenever there is case under consideration in the courts, a ruling is always anticipated. These judgments form a key source of law. As such they are usually very weighty. It is however, noteworthy that not all that is said by the judge in his or her judgment is treated as essential in revealing the underlying reasons for the given decision. There are statements that the judge lays forth in the course of delivering his or her decision that only manifest the held opinions and comments. These comments mainly serve in reinforcing the verdict but not that they form the basis of the ruling. These are called obiter dicta as they are things said in passing. They are to be distinguished accordingly from the essential matters of the decision which form the ratio decidendi or basically the reason for the decision (Duxbury 17-23). What matters in a judgment therefore, is the ratio decidendi and it can only be assessed by further interpretation and/or commentary in subsequent times of consideration. This forms an authentic basis for the ruling being marked as a precedent. The findings of this analysis highly aid in the determination of whether, or not, the judge’s ruling reflect the due process of law and its interpretation. This is mainly necessitated by the quest to answer the following questions: What happens if the precedent case itself is unjust? And will justice be served if successive cases are decided similarly? Some of the key facts about precedents are as follows; 1. A precedent is only binding to a lower court in the hierarchy and not conversely. A superior court, therefore, doesn’t have to burden itself with the decisions taken by the lower courts. 2. If not binding, a case can only be presented as persuasive. This means that without any other authority, the persuasive case could guide the proceedings of the case under consideration. 3. What binds isn’t the whole decision but the ratio decidendi. The side show statements are not put to useful consideration and are only looked at as such. This was reinforced by Lord Halsbury in Quinn v. Leathen where he held that a case is only accountable for what it actually rules and not what is said in the mere course of the decision. He further stated that any logical propositions were not to be mistaken for the law being logical at all; for this is absurdly misleading. This is because law is not always logical but factual. The application of a given case as a precedent is dependent on the facts of the litigation under consideration and the relationship thereof. Secondly, it shall be subjected to the actual requirements of the precedent in the new case. If these necessities are sufficiently met, then they shall form a basis for progress into being utilized (Black 89-112). And finally, the ability of the case in aiding decision making through advisory services is a profound consideration. Despite the above aforementioned utility of the cases as precedents, Surhone et al (113-134) reveal they could still be distinguished on several grounds some of which have been highlighted below; 1. When there is an outright distinction between the present case’s facts and the precedent case. If they are not fully correlated, then the precedent case ought to be reconsidered; and as such it can’t be used in court. 2. If the considered statement is actually too far and wide. This implies that the considered legal norms are too general to form any basis for consideration. In such a case, the precedent will have to be disregarded as a case law. 3. When the statement under scrutiny is found to be an obiter dictum. If the thought statement is found to be a statement that was said by the judge in the course of the delivery of the judgment, then the precedent doesn’t have a full backing under law to be used in subsequent cases. 4. In case the circumstances and the prevalent conditions are different from the precedent’s circumstances. The change of social circumstances as well as considerable conditions necessitates the outlook change. It wouldn’t be just enough to subject a ruling in a case of varied circumstances in another especially due to the effects of modernity. 5. In the event that the case got wrongly decided. If this happens, then it means that justice didn’t prevail, and as such, this can’t be enhanced by all means. This entails a change of perspective on the look at the case under consideration. 6. If the decision doesn’t measure up on policy grounds. This stipulates that the considered case was actually well decided and its facts are correct and without any contradictions, but the only thing is the policy that was applied. Thus, this ground provides that due to that, an unfair decision may have been reached thus enhancing injustice. To avoid this, the precedent is not sustained but overruled. Stare decisis This doctrine simply means “the decision stands”. It means that the given decision should remain as it is both as an authority for lower courts and as a decision that can’t be overturned. It is an advocacy for the “what” and not the “why” nor the “how” of the reached rulings. Thus, that which is upheld is the decision and not the things said by the way (Nelson 13-20). It is also commonly called the doctrine of precedent and aimed at preserving four main provisions: the predictability of the law operation; the rational efficiency of the law process, the separation of power promotion between the various branches of the government and the enhancement of equality and fairness for all. The promotion of the independence of the various arms of the government and their separation was demonstrated in Curry v Director of Public Prosecutions (1994) in a decision held by the House of Lords not to contravene the lawmaking right of the Parliament openly (Cross 123-140). Stare decisis is a principle that is two-fold. Firstly, the decision made by a higher court is fully binding on inferior courts but within the same jurisdiction. Secondly, the court can’t overturn its own decision unless there is a very strong reason for a converse opinion and should follow all the stipulated guidelines (Williams 34-45). These two provisions provide the basis for the application of this doctrine all over the world, with Australia inclusive. It is duly prevalent in all Commonwealth countries as well as other nations such as the United States of America, Hong Kong, Singapore and Pakistan. Under this doctrine, the decisions of a court in a different jurisdiction only supplement as persuasive authority (Deutsch 34-45). This persuasiveness is reliant on factors that include, and not limited to; 1. The other jurisdiction’s nature. 2. The rank held by the case-deciding court in the other jurisdiction. 3. The date of the precedent case. On this factor, the more recent the case the more reliable it becomes as an authority. 4. The reputation of the judge that ruled on the case. This is to a very lean degree. Stare decisis is indeed a substantial contribution to the continuity of the court system in line with the hierarchy and due process of law. It facilitates a good hierarchical correlation between the law courts and an understanding in how the precedents are to be applied. This application of the doctrine enhances the ridding of unforeseen conflicts especially in the rulings by the various courts within a given legal system. In times of conflicting equal weight decisions, a more recent decision is usually taken as was reflected in the 1876 Ontario appellate decision of Fisken et al. v. Meehan. The lower courts had to follow this rule in Bank of Montreal v. Bailey and Bailey without any presumptions being made. Contrary opinion was taken by the judge in Hamilton v. Hamilton where it was held that in the case of conflicting rulings, a lower court’s judge could follow that which is more appealing to him or her. This case per se presents a per incuriam as it has no precedent (Hayward 5-12). In an effort to signify the importance of a clear cut understanding of stare decisis, the House of Lords reiterated the fact that they were not aiming at changing the law but only eliminating the misconceptions that do arise thereof in the endeavor to unveiling the true effect and meaning of the law in their ruling in R v R (1992). This doctrine as was held by Hansford and Spriggs (1) has far reaching contributions to the development of case law. First and foremost, they assert reinforce the importance of the Supreme Court in the US on grounds that its decisions determine the eventuality of the subsequent litigations and that they are extensive in their consequences. The latter ground exposes the significance of the court in question, which is the highest in the country’s judicial system. It can actually reconfigure the prevailing legal policy and effectuate the desired dispute resolution mode. In their argument, the two authors found that the court decision making process is based on two profound paradigms: attitudinal and legal models. The first model presupposes that the judges are motivated by the interests about the substantive strategy outcomes while the second one decries the fact that they are motivated purely by their sense of duty to follow the given legal provisions and norms. In accordance to his provisions, Moore (45-67) directs that there have been enormous strides made by both the US and the UK in the application of this doctrine of stare decisis. This is duly evident in the large number of cases that are nowadays in the public limelight. Furthermore, other commonwealth countries aren’t left behind in this mix. Australia has a very strong base for the doctrine as revealed in the Barnes case. In this case there had been an injustice in the denial of bail to a complainant on the grounds that were unclear under the profound Bails Act. This was rectified in the subsequent appeals with due considerations being made. Conclusively, it is true that the doctrine of stare decisis is sufficiently paving way for judicial progress as well as legislative stride. The modes of fact interpretation have now improved a notch higher in this country of Australia. This is a clear indication of how much the legislative base for this nation has improved ever since it was a colony of the UK and now a fervent member of the Commonwealth. Works cited Miller, Frederic P., Vandome, Agnes F., McBrewster, John. Law Report: Legal opinion, Case law, Court, Case citation, Reporter of Decisions of the Supreme Court of the United States, United States Reports, English ... Commonwealth of Nations, Stare decisis. (2009). Duxbury, Neil. The Nature and Authority of Precedent. (2008). Williams, Mike. Stare Decisis, (2008). Surhone, Lambert M., Timpledon, Miriam T., Marseken, Susan F. Precedent: Common Law, Legal Systems of the World, Legal Case, Court, Fact, Binding Precedent, Stare Decisis, Lower Court, Distinguish, (2010). Moore, Russell F. Stare decisis: Some trends in British and American application of the doctrine, (1958). Zander, Michael. The Law-Making Process. (1980). Nelson, Gale. Stare Decisis, (1991). Cross, Rupert & Harris, J. W. Precedent in English Law (Clarendon Law Series), (1991). Black, Henry Campbell. Handbook on the Law of Judicial Precedents: Or, the Science of Case Law, (2009). Deutsch, Jan G. Power and precedent: The Role of Law in the United States, (2007). Hayward, Allison. “The Per Curiam Opinion of Steel: Buckley v. Valeo as Super precedent.” Cato Supreme Court Review 195.202 (2005-2006). Hansford, Thomas G. & Spriggs, James F. The politics of precedent on the U.S. Supreme Court. Princeton University Press, 2006. Pp. 155. 18-03-2010 Read More