Precedent in English Law - Essay Example

It is always considered to be the rule-based, legally well-established case law. "The fact that English Law is largely a system of case-law means that the judge's decision in a particular case constitutes a 'precedent'The judge may simply be obliged to decide the case before him in the same way as that in which the previous case was decided, even if he can give a good reason for not doing so," Cross and Harris (1991, p.4). There is no doubt that precedents have not remained what they used to be and as the society evolves, some of the precedents might become irrelevant and it is left to the court's discerning judgement where and how to apply these highly useful precedents.

"Rather, what is common to all the various traits of free judicial decision-making is their critical attitude towards the formalist premises of legal positivism and the ideology of bound judicial decision-making," Siltala (2000, p.5) and he argues that legislative techniques have undergone great change in 20th century which has given way to 'judicial anti-formalism'. Precedent spells the legal authority in the form of a forgone legal case that had reached a judgement that could be described as 'out of the track'.

It does not say that similar judgement should be established every time; it only becomes a mandatory example from which either the judge could derive inspiration or measure the new case from that angle. Court is expected to consider such precedents before interpreting law for another judgement. Precedent is a landmark decision that could be applied to other cases, but according to independent circumstances. "The rule-based model suggests that the function of precedent is to settle the law so that it can guide individuals and the courts.

The reason-based model suggests that the function is to compensate for the erosion of consensus in the common law by simultaneously fixing starting points for decision-making without giving the judiciary lawmaking power" http://journals.cambridge.org/download.phpfile=%2FLEG%2FLEG11_01%2FS1352325205050019a.pdf&code=303b5dd539d0786a50aadfcbedad50cdPrecedents could be mandatory/binding or persuasive, depending on the importance of the said precedent, and also depending on the exclusive circumstances under which it was delivered and the authority who created the precedent.

Usually binding precedents are created by higher courts for the lower courts to follow. If created by a lower court, it is never binding on the higher court, although it could take it as a matter of sound significance. Even if it is binding, this does not mean that the lower court has to follow it to the letter unless it is 'directly in point' and no additional cases could be formed on the precedent case. Also in rare occasions, a higher court can overturn the judgement of precedent case, or sometimes even limit the scope of the precedent.

Even when they are binding, they do so in a certain ratio, which was highly pronounced in Duncan v Cammell. "On that criterion the ratio decidendi of Duncan v Cammell, Laird would have to be "the" reason which explains the holding on "the" material facts and nothing wider. Therefore all utterances in the precedent case which went in verbal ambit beyond such a reason, even though that ambit might seem to govern the instant facts, did not in law do so. For they were simply not a part of the ratio of Duncan's case," says Stone (1985, p.133).