Doctrine of Precedent - Case Study Example

Doctrine of Precedent Introduction Applying "precedents" which is past solutions is an ordinary method, in business as well as in all common law legal arrangements. Some decisions taken in cases become binding. Sometimes Judges decisions tie down later courts of equal or higher rank, in case the material facts of the case are the same. English judge, Baron Parke, enunciated this theory of binding stare decisis, in 1833. To bring about a faith to the law the courts followed the principle of stare Decisis.1 This is referred to as the doctrine of precedent. The doctrine of precedent’s role in the English legal system is very important since common law is a vital basis of law in the English legal system. This is opposite to the European legal system as it is founded on legal examples and possibilities. The substance of precedent is known as "common law" and it bonds future determinations. When parties are in disagreement in the future and if the nature of the conflict is similar then the common law court bases its decision with the help of Presidential decisions of applicable courts2. The court is bound to follow the reasoning of a past similar disagreement in which the issue was resolved. This principle is called ‘stare decisis’. But if the present disagreement is different from all other previous cases then the judges have the right and responsibility to formulate new law which thus creates a precedent as in Marbury v. Madison, 5 U.S. 137 (1803); "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each". From then on, the new verdict became precedent, and is binding on future courts. Doctrine of Precedent The English legal system is based on the common law and the precedents. The doctrine of precedent is defined as ‘The common law principle which binds a judge or a magistrate to follow previous similar decision of higher courts in the same hierarchy; also known as stare decisis’ (Vickery & Pendleton 2006), which implies the decision stands. The doctrine of precedent derives from common law and law of equity, which is ‘English-made’ laws that aims to be fair and treat all equally, so that the decisions by the courts are predictable and consistent in resolving disputes. There are binding and persuasive precedents, of which binding precedents are known as ‘ratio decidendi’ when the final order or ‘res judicata’ by the court is made to the immediate parties, and it has a legal effect based on the key reasons for the decision. This includes passed decisions by the higher courts in the same hierarchy in similar cases, will be used for future similar cases so there are consistent remedies or sanctions under common law. ‘The high court’s decisions in passed cases, will have the lower courts legally bound’ (Barron et. all, 2003). An example of a precedent being used was in the final decision of The House of Lords case in 1932, for the ‘Donoghue V Stevenson [1932] AC 562’ case. The issue of this case was that the defendant (Stevenson) was liable for damages to the plaintiff (Donoghue) who found a decomposed snail in her ginger beer, even though she did not buy the drink directly from the defendant in the form of the contract. However, the defendant had a duty of care to their consumers, which in this case they were negligent. The House of Lords case was similar as manufacturers have the duty of care when selling their products, and ensure they are safe to consume. Therefore this precedent was legally binding and enforced by common law for a similar outcome. “If binding precedents are not followed by the courts, in common law the high court can reverse the decision since that court is the highest in the hierarchy” (Vickery & Pendleton 2006). Another option is for an appeal on the decision if the one party believes it was an unfair, misinterpreted or misunderstood decision. However, according to Gibson and Fraser (2007, pp. 61-83) “past case law decisions by the judges or magistrates in other hierarchies around the nation and other countries jurisdictions may influence the decision by the judge but will not have any legal effect”, which just intends to be persuasive also known as ‘obiter dicta’, on the similar cases. The advantages of precedents being used is that it establishes consistency of the law, predictability for lawyers and stakeholders, and efficiency of administration so there is less time consumption for creation of new laws and judges can make quick decisions based on the facts and evidence presented by the plaintiff who must prove on the balance of probabilities against the defendant. They can be explained as follows: i) Expedient: Since the decisions of previous cases are followed it is possible that the cases based on this judgment can be completed within a lesser time. Also people can find an element of predictability. The procedure becomes easier and more sensible since no rigid, extensive rules have to be followed only a real situation which was already resolved is followed (http://socyberty.com/law/role-of-doctrine-of-precedent-in-the-english-legal-system/ retrieved 8 April 2010). ii) Efficient: Since there is a foundation of judgment to be followed the judicial process is quicker. Also the element of efficiency is more since the decisions are founded on a precedent thus giving it a stronger footing (http://socyberty.com/law/role-of-doctrine-of-precedent-in-the-english-legal-system/retrieved 8 April 2010). The disadvantages of the precedent are that the case laws can be outdated and retrospective because society constantly changes and cultures develop. Therefore, ‘the time for new or change of laws is not keeping up to date with the public society, and may require an Act of Parliament to change’ (Gibson & Fraser 2007). However appeals to the decision may be brought to a higher court if either party believes the decision by the judge or magistrate was inadequate. Also ‘an appeal or any litigation can be very expensive, time consuming and stressful for both parties’ (Brennan 2007, p. 70). However, the disadvantages of legislations are that it can be ambiguous if not carefully drafted, and have a longer process to implement and enforce because of the political nature. Therefore some cases will miss out on the opportunities of legislation if not existent therefore precedents are used in favour. Or when the doctrine of precedent is taking legislation into account, it may be interpreted through the courts differently, which can contradict the actual meaning of the legislation if the sections of it are ambiguous therefore the literal approach in the ‘Act. Fisher v Bell [1960] 3 AII ER 731’ case, the golden rule approach, or the mischief approach would be used. Thus it can be said that the Common Law makes use of the conception of precedent. It can be inferred that no case will have any meaning when it stands by itself but when compared to other cases it contains some meaning. Actually a complicated principle would have emerged from a simple case and it would be interesting to see how it had evolved. In reality the changes is evolutionary and not revolutionary. Sometimes an influential case might have deduced its principle from a mix of other cases which are related in their principles like the case of Rylands v Fletcher (1868) LR 3 HL 330. The views on law by scholars who have their works written have being accepted by judges in later cases. This has been later on set as legal doctrine and thus judicial precedent evolved, thus followed the concept of stare decisis. One of the greatest values of this precedent of stare decisis is that it renders certainty. Alternatively, there are risks: first, if the courts have to avoid the decisions of stare decisis then they have to find differentiations between cases; secondly, the doctrine restricts suppleness and can make unquestionable some rationales which ought to have been deserted long ago. An unusual instance of a confirmed legal theory being reversed can be seen in R v R [1991] 3 WLR 767; [1991] 4 All ER 481. House of Lords and Judicial Precedent Till 1898 the House of Lords had the authority to rule against its own prior decisions. Nevertheless in 1898 in the legal case law of London Street Tramways v London County Council “The lords held that certainty in the law was more important than the possibility of individual hardship being caused by having to follow a past decision. Thus from 1898 the Lords regarded itself as bound by its own previous decisions unless they were made ‘per incuriam’, in error, which is where the Lords have ignored a statute” (Elliot and Quinn, 2009, pp 5- 23). Nonetheless this conclusion became progressively more unacceptable as the law could not change to meet varying social conditions, nor could it modify to change erroneous decisions apart from per incuriam ones. This had to be met by passing a new act of Parliament as was judged in DPP v Smith (1961). In this case the Lords had decreed that purpose could be judged impartially. But this was not in line with prior common law and was declared to be wrong. Thus a statute had to be created to change this ruling (Elliot and Quinn, 2009, pp 5- 23). Due to the issues induced by the House of Lords’ intentional renunciation of its power to alter its own decisions and mainly because of condemnation caused by Smith. In 1966 Lord Gardener the Lord Chancellor published a Practice Statement which read as follows: “Initially the Lords were reluctant to use this new power, but since the 1970’s it has been much more willing to apply it in both criminal and civil law” (Elliot and Quinn, 2009, pp 5- 23). Obiter Dicta statements are also precedents as was determined by the House of Lords in R v Howe (1987) where in the Lords decreed that duress cannot be considered as a defence when a charge of murder is inflicted on an individual. So the Lords also adopted Obiter stating that duress cannot be made available as a crime for someone accused of attempted murder. However in 1992 in R v Gotts, the Court of Appeal applied this Obiter statement as a convincing precedent to decree a defence of duress when there was an accusation of attempted murder (Elliot and Quinn, 2009, pp 5- 23). Judges as Law Makers According to Dicey (1905) "As all lawyers are aware, a large part and as many would add, the best part of the law of England is judge-made-law; that is to say, consists of rules to be collected from the judgments of the courts. This portion of the law has not been created by Act of Parliament and is not recorded in the statute book. It is the work of the courts; it is recorded in the reports; it is, in short, the fruit of legislation." The creative part of the judges in UK has been so prevailing, that English law is sometimes denoted as judge-made law. But it cannot be considered that judges in England have created the law in the same way as the legislatures. Additionally, this view cannot be applied to other countries (Chokgiri, 2009). A judge might lay down law in cases of first opinion, but for this he takes the support and guidance of certain principles, rules and ideals. Judges render a creative touch to the application of codified law even in those countries where law is a statute. The effect is that judges not only pronounce law but also constitute law. Nevertheless, the terms ‘make’ and ‘declare’ should not be construed in their general meaning but they have to be taken in a unique sense. Even though declaring and making does not differ much but they are not synonyms as well because the distinction is only that of degree. A judge simply acts on the material disposed to him by the legislature. His duty is only interpreting and in doing so, he takes on a creative role. He contributes life to the frame of law. He accommodates it to the altered circumstances and induces its dynamic development. Even if the law created by judges cannot be in the sense of promulgating it, but still it has to be accepted that they formulate the law (Chokgiri, 2009). Judges are actually here to “apply the principles which emerge from the case-law of the past, to adapt them to the conditions of the present, and so to mould them that they may be fit to serve for the future” (Seaforth, 1962). Conclusion In conclusion, the doctrine of precedent is very effective in case laws that give similar outcomes for the parties in the courts based on similar facts and circumstances of cases. The strengths of the doctrine of precedent, and reasoning are public, and it aims for fairness and equality under equity law. But the application of precedents may not be appropriate therefore legislation is proactive and prevails on disputes that may arise in the future. Where there are disadvantages of case laws, the power of legislation provides better outcomes whether it is a civil or criminal case, because legislation aims to reinforce the law and deter potential breaches in future. To get a quick decision in resolving disputes the courts decisions should use binding or persuasive precedents because of the legal costs and time available. If either party wants an appeal for a fairer decision be able to go to the higher court, or legislations can provide that support if the precedent was inadequate. Right through the centuries the English legal arrangement has been established by making and enforcing precedent after precedent. Even today when more and more statutory rules are passed by the Parliament the judge made law is still considered as important. Reference 1. Catherine Elliott and Frances Quinn. (14 May 2009). English Legal System Longman; 10 edition pp. 5-23 2. Chokgiri, 2009. “Judge: A law Maker or a mere Declarer”. Retrieved from http://legal-articles.deysot. com/administrative-law/judge-a-law-maker-or-a-mere-declarer.html on 8th April 2010). 3. Dicey, A.V., 1905. Law and Opinion in England, Macmillan, London: p 361 4. Gibson, A & Fraser, D., 2007. Business Law, 3rd edn, Pearson Education Australia. Australia 5. http://socyberty.com/law/role-of-doctrine-of-precedent-in-the-english-legal-system/ retrieved 8 April 2010 6. James, Philip Seaforth, 1962. Introduction to English Law: 5th ed, Butterworths, London: p. 13 7. Margaret Barron, Peter C. Anderson, Richard J. A. Fletcher. 2003. Fundamentals of Business Law. McGraw-Hill. Higher Education. 8. Vickery, R & Pendleton, W, 2006. 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