Legal System of England and Wales Assessment - Report Example

Doctrine of Precedent Precedent is rigidly attached to the hierarchy of courts, and the decision of a higher court is binding upon all the courts subordinate to it. Precedent is of importance to any legal system; however, in the UK common law, its effect is seen to the greatest extent. Moreover, the doctrine of stare decisis makes it obligatory for a court to conform to the decision of a higher court, when the circumstances of the case being heard by it are similar. Thus, precedent does not merely constitute guidelines for a ruling judge. 1 As such, the decision taken by a court in a case is to be followed by a subordinate court, if the facts of the case are analogous. This constitutes the principle of stare decisis. Nevertheless, this doctrine of judicial precedent is not to be upheld blindly, and goes beyond the mere examination of differences and similarities. Judicial precedent entails interpretation and promotion of the principle thrown by each case. Despite its intricacy, the doctrine of precedent, basically binds lower courts to decide according to the decision given by a higher court, under similar circumstances.2 Despite promoting consistency and certainty, the doctrine of precedent suffers from several disadvantages. A glaring drawback with precedent is that a lower court judge may have to pronounce a judgement that he may regard as inequitable, just because such a judgement had been given in a higher court. In addition, an unjust ruling may continue to hold sway, till such time as a sufficiently higher court rescinds it.3 Furthermore, it would be fallacious to subscribe to the view that the doctrine of precedent would always lead to an inevitable conclusion. On several occasions, judges had made muddling statements. Moreover, judicial statements may be difficult to classify as being a part of the ratio decidendi and as a consequence possess a binding nature, or whether these statements constitute obiter dicta.4 The term common law is also employed to denote the precedent based feature of any law that pertains to the common law jurisdiction. This was in marked variance to legislation or statutory law. It also signifies the area of the legal system that developed independently of special branches of the law, like equity and maritime law.5 A major distinguishing feature of common law lies in the fact that it denotes the law engendered by a court, whilst pronouncing judgement. In this system, cases are decided on the basis of precedent. This is unlike the civil law system, which relies on prescribed texts and statutes. In addition to the doctrine of precedent, common law also incorporates features such as trial by jury and the principle of supremacy of the law. Initially, supremacy of law meant that even the monarch was not above the law. From the present day perspective, this doctrine states that every act of a governmental agency can be examined during ordinary legal proceedings.6 Familiarity with the English legal system entails a proper understanding of the common law system. This requirements stems from the fact that the English law is nothing other than the common law, which is a traditional system. A perusal of the common law makes it evident that this system is devoid of rational design, and that this system is seemingly the outcome of historical coincidences and exigencies.7 With the advent of considerable criticism and change being effected in the older traditions, such as the adversarial system of legal proceedings and oral arguments, the opinion, in some quarters that the common law system has come to an end, has been expressed. However, this has been countered by others who have firmly highlighted the flexibility and organic character of common law tradition, which would engender favourable amalgamation with other legal traditions.8 Reasoning in the common law system is principally based on reasoning from precedent, because the common law constitutes the judge made law. It is to be clearly comprehended that the principle of stare decisis or the notion of binding precedent presumes that cases of a similar nature should be accorded the same legal treatment. Stare decisis enjoins that the solution provided in a case to some specific question of law, should be applied by the courts that have to rule on the same question of law.9 A critical component of the common law is the doctrine of precedent. On account of this principle, there is uniformity, certainty, logical progression and development in law. However, at times, precedent can complicate the issue and also prove to be inflexible. Therefore, a codified system is preferable, as such a system comprises of legislation and the case law is merely illustrative and not binding. Obviously, it is easier and more equitable to apply law, rather than to follow the decision in cases, which could on occasion be the outcome of extraordinary circumstances or unequally argued cases.10 Some of the important areas of the law, such as the law pertaining to contract, tort and land, owe their origin to the common law courts. Royal Prerogative is a contemporary concept that has emerged as the cynosure of all eyes. The Royal Prerogative denotes the rights of the Monarch. One of these is the right to administer justice. 11 In the beginning these rights were vested with the Crown, subsequently, they have been arrogated by the government or the judges. A few of these rights have substantial significance, and some examples are the right to form treaties with external powers, the right to engage in foreign relations and the power to declare hostilities. Any claim of prerogative power has to be supported by the courts, and the latter has also to describe the extent of such power. Furthermore, a new prerogative cannot be created; consequently, historical precedent is essential for any prerogative power.12 The doctrine of precedent leaves much to be desired. A decision by the courts is binding and admits of no disagreement. The only course left open to an aggrieved party is to approach the highest court of the land. However, this is not practically viable on account of the enormous cost involved. Moreover, the usual course adopted by this court is to uphold its previous decisions, until and unless there are compelling circumstances to change the decision. This situation is alleviated to some extent by the anticipation that legislation may be enacted that would mitigate the inequity involved in such inflexibility. However, legislation has seldom rescinded case law.13 Another major disadvantage with precedent is that there is considerable body of case law. As a result, very few persons can familiarise themselves with the case law in its entirety. This situation is fraught with danger, as even a highly experienced lawyer may fail to notice a rule generated by case law. This is especially true of rules developed by case law, such as the law relating to torts. 14 In matters of importance, wherein precedent promotes unfairness or where the extant law relating to some legal query is muddling, it has been suggested that an appeal should be filed with the highest court of the land. In addition, the costs involved in this endeavour should be borne by the government. This recommendation is based on the principle that the expenditure incurred in the development of the law should not have to be borne by individuals. 15 The advantages associated with a precedent based legal system are first, there is a tangible amount of certainty. Consequently, the legal system admits of a substantial amount of predictability and therefore litigation involves less cost. Second, no judge can take a subjective decision with the result that objectively acceptable legal rules are created. Third, the highest court of the land can always circumvent taking a decision that is based on precedent. This ensures that an unjust decision can be reversed and that decisions match the requirements of society.16 Fourth, precedent based decisions score over legislation based decisions, as they constitute a response to a factual situation. This promotes the practical and comprehensive application of the law. Fifth, a method of dealing with dilemmatic legal situations is provided by precedent. Consequently, situations not covered by the extant legislation can be resolved. Finally, practical experience dictates legal growth.17 The aforementioned advantages are offset by the disadvantages enumerated in the sequel, first, judges hail from a limited social group. Consequently, their outlook does not represent the general public opinion. Second, precedent compels the lower courts to strictly decide on the basis of what a higher court had decreed. In many decisions, considerable difficulty has to be countenanced, while determining the ratio.18 Third, in order to avoid a precedent, the ruling may resort to distinctions that apparently defy logic. Fourth, development of the law is fragmentary, as case law does not develop in a coherent manner. Fifth, the highest court has to be approached for a conclusive decision. This is time consuming and very expensive. Sixth, legal change cannot be effected in the system of precedent, because a suitable case has to be heard by the courts for such change to take place. Seventh, several distinguished members of the judiciary have declared that the doctrine of precedent engenders injustice on occasion. Finally, intricate and imprecise bodies of law arise from judicial precedent, which promotes speculative litigation.19 The law developed by the judiciary, via its judgements, constitutes the common law. The common law existed much before the parliament came into being. The major portion of the extant law in the UK was created by the common law courts. A legal system based on the doctrine of precedent, has to perforce rely on litigation for the formulation of rules. Modern legal demands arise with great rapidity and entail considerable intricacy. Now, litigation is inherently expensive and time taking. Thus, a tangible and serious disparity occurs between modern legal demands and these laws. Thus, on the whole, the doctrine of precedent consists of a greater number of disadvantages and a system based on legislation would prove to be far more equitable. Bibliography Advantages and disadvantages of precedent, 2006, retrieved 9 November 2010, < http://legal-directory.net/english-law/advantages-and-disadvantages-of-precedent.htm>. ‘Common law’, Columbia Electronic Encyclopedia, 6th Edition, 2010. Mitchell, A, AS Law, 3rd edn, Taylor & Francis, 2008. Røberg, Af Kristine, Common Law & The Human Rights Act 1998, 2003, retrieved 7 November 2010, . Sources of Law, 2010, retrieved 9 November 2010, . The Doctrine of Judicial Precedent, 2006, retrieved 6 November 2010, . The Sources of the Legal Systems, 1998, retrieved 9 November 2010, . University of London External Programme, Chapter 2 Identifying features of the English legal system and the common law tradition, retrieved 7 November 2010, . Williams, CR, 'The theory and practice of precedent', Legaldate, vol. 10, no. 2, 1998, pp.1 – 4. Read More