Do Statutes Tame Doctrine of Precedent - Essay Example

Do Statutes tame Doctrine of Precedent Introduction The first settlement of the British in Australia was distinguished by the establishment of a penal colony at Botany Bay in New South Wales in the year 1788. This land inhabited till then by the aboriginals had no legal system to cite and was characterized only by some unrefined and undefined folk traditions. When the British formed their colonies they adopted and made it obligatory the notion of terra nullius which meant that the land belonged to no one. This they did because there was no particular recognition of laws or rights to the land of those aboriginal people at that time. But in due course, to cope with the administration of the colony, the English in Australia, simply acquired almost all of the prevailing British law at their discretion and for their easiest convenience, started applying them according to the call of the circumstances in the colony. Thus, common law of Britain which originated in the thirteenth century based unevenly on Roman traditions became the guiding principles of the current legal system of Australia. The Australian legal system founded on the common law has the elements of trial by jury, adversarial system and presumption of innocence. But as the society became civilized and the living conditions changed, many of the existed laws became incapable to meet the challenging situations and requirements of the people. Hence, legislation was required to formulate new statutes or Acts to meet the varying needs of the people. These legislations were enacted to broaden the living style of the people and also to regulate the society as a whole, to bring in equity of law. However, the laws based on the doctrine of precedent or case laws edge over the statutory laws, because of its simplicity in its application facilitating decisions on a case by the jury. The statement that the current Australian legal system exhibits an increasing reliance on statute law must be analyzed in the above context, and in order to verify its sanctity it is necessary to have a clear picture of the law structure of the Australian legal system. (Robin Banks, 2006, Law Australia, Legal Information Access Centre, (Sydney, NSW), http://www.liac.sl.nsw.gov.au/hot/pdf/aust_leg_syst_60.pdf. viewed on 9th May, 2009) Classification and Sources of Law Law can be classified into two, as public law and private law. Public law is criminal law and is concerned with matters of the State whereas, private law is civil law pertaining to the matters of individuals. Criminal law is used to suppress criminal offences by punishing the accused. Civil law deals with disputes between individuals Australian law is based on the system of common law and its procedures are (i) the adversarial nature of court proceedings, and (ii) the appeal provisions. The sources of the law are statute law and case law, and they are of equal validity. Statute law known as Act is enacted law made by parliament. Case law is the principles of law arrived at by the judges in court decisions. (Victoria Law Foundation, 2009, Law & Our legal systems, Chapter-1, http://www.rurallaw.org.au/handbook/xml/ch01s02.php, viewed on 9th May, 2009) History of Case Law and the guiding Principles According to Baker, 'A precedent is a decision or judgment of a court, which is used as authority for reaching the same decision in subsequent cases.' (Baker J.H., 1979, An Introduction to English Legal History p. 171, Butterworths, London) However, it should be noted that Australia has a federal structure and that it has a parliament for each state and also has one for the Commonwealth. The Federal system of government was established by the Commonwealth of Australia Constitution Act 1900. The colonies became states and the states joined to form a Federation. The Law making power is vested with the Federal government as well as the state governments The doctrine of parliamentary sovereignty demands that nobody can annul a law promulgated by the parliament, whereas, common law can be changed through legislation. When the Federal government makes law, it applies to the whole of Australia. But the law made by state government is applicable only within that state. Doctrine of precedent The common law principle that binds a judge or a magistrate to follow an earlier similar decision of a higher court in the same hierarchy is termed as the doctrine of precedent. If the doctrine has to work, there should be a lower court to follow the decision of a higher court in the same hierarchy and within the jurisdiction. This is called stare decisis. It implies that the decision will stand. The doctrine of precedent originates from common law and the law of equity. It ensures that the decisions by the courts are predictable and consistent in resolving disputes. The previous decisions by the higher courts in the same hierarchy in similar cases will be applied for future similar cases so that there are consistent remedies or sanctions under common law. In the case 'Donoghue V Stevenson [1932] AC 562' known as "The snail in the bottle case', the precedent was created on 'duty of care to the public' when producing goods thereby establishing an obligation to take care of others. ( www.lawtalk.ca/pdf / June% viewed on 14th May, 2009). If binding precedents are not followed by the courts, the high court can reverse the decision since it is the highest in the hierarchy.' If the decision is unfair there is provision to seek appeal. Even if there is no appeal, the high court can overrule a decision as in the case of 'Mabo V. Queensland [1992] 66 ALJR 408'. The main advantage of precedents is that it confirms consistency of the law for the benefit of the public. It will improve the efficiency of administration by lessening the time required for creation of new laws. The judges can make quick decisions with reference to the precedents. The doctrine of precedents is helpful in the precise drafting of the laws and its amendments or repeals to maintain the consistency of the law. The disadvantage of legislation is that it can become ambiguous and takes a long processing time because of its political leniencies. Moreover, there are chances that the legislative laws can be interpreted differently by the courts. Therefore, the doctrine of precedent is very effective in case laws that give similar results. The doctrine of precedent aims for fairness and equality. The legislation is proactive and prevails over any disputes that may arise in the future. Even if it is so, the power of legislation has its own benefit as it is long standing to prevent any breaches of law. But for a quick decision in settling disputes the courts decisions are the best as they are binding and persuasive lessening the legal costs and time. For appeals one can go to a higher court too. The judicial creativity of the Court aims to adapt law for the benefit of the society and does not suggest a departure from precedent. As such, if judicial creativity conflicts the doctrine of precedent, it does not bring a situation of the decline of the doctrine. Actually, in that situation, it means only that it is setting down new precedents. This is not decline, but it is laying the foundations to accommodate the changes in the society. (M. Kirby, 'In Defence of Mabo', 1994, 2998 Screen Australia', http://www.mabonative title.com.au/ info/decisionOfTheCourt.htm, viewed on 14th May, 2009) The courts' adherence to the Doctrine of Precedent as the basis of common law has not decreased in any case and at any levels. The doctrine has encompassed both binding and persuasive decisions. While 'the Court enters the next century, so too will the foundations upon which Australia became a nation and with it, the beliefs of an entire melting pot of people as diverse as the universe itself.' (http://www.studyworld.com/ newsite/ReportEssay/ SocialIssues/Political% viewed on 9th May, 2009) The doctrine of the precedent is a court system maintained for the development of a competent, pervasive and reachable official reporting system in Australia. It helps the courts in establishing consistency while imparting justice to the society. Through centuries it has become a guiding star for the judges in the matter of reaching decisions on disputable issues. It can never be treated as a mere adoption of a principle of accommodating similar facts into the similar previous ones. Cases have already transformed themselves into sources of law and as long as legal reasoning is valued as reasoning from authority, doctrine of precedent will prevail as the foundations of such legal authority and as such, the Statutes can never tame or subdue Doctrine of Precedent. (Macadam, A. & Pyke, J., 1998, Judicial Reasoning and the Doctrine of Precedent in Australia, Butterworths, Sydney). Conclusion: In essence it can be said that the doctrine of precedent is the core of the common law. The courts are bonded in approved boundaries by previous decisions of superior courts. Observance of precedent assists to attain two objectives of the legal order. 1. It adds to the preservation of a system of stable laws. This firmness gives predictability to the law and gives a level of safety for individual rights. 2. It also guarantees that the law grows only in accord with the varying percepts of the community and therefore more perfectly reflects the ethics and anticipations of the community. In reality a system which is founded on precedent will be rational and flexible to diverse and varying conditions. All the different human experience will be taken into account. Precedents will be practical to a greater degree because it is being compiled by the best minds of many generations. This leads to the gradual growth of the system and this will avoid all kinds of pitfalls of hurried and harmful doctrine. References 1. Victoria Law Foundation, 2009, Law & Our legal systems, Chapter-1, 2. Baker J.H., 1979, An Introduction to English Legal History p. 171, Butterworths, London. 3.Justin Malbon, 1992, Aboriginal Law Bulletin, http://www.austlii.edu.au/ au/journals/ AboriginalLB/1992/36.html, viewed on 14th May, 2009) 4.Victoria Law Foundation, 2009, Making laws, http://www.rurallaw.org.au/ handbook/xml/ch01s02.php, viewed on 14th May, 2009. 5. M. Kirby, 'In Defence of Mabo', 1994, 2998 Screen Australia', http://www.mabonative title.com.au/ info/decisionOfTheCourt.htm, viewed on 14th May, 2009 6.Macadam, A. & Pyke, J., 1998, Judicial Reasoning and the Doctrine of Precedent in Australia, Butterworths, Sydney. Read More