Judicial Precedent (1)
JUDICIAL PRECEDENT (1)
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Editor’s Comments
The
doctrine of judicial precedent plays a vital role in the legal system.
Students must be able to analyse the practical application of the doctrine
and discuss about concept of judicial creativity. Hence it is necessary for
the students to be familiar with the role of the modern judiciary today in
the context of applying previous decisions to present cases. It is equally
important to consider in the context of judicial creativity, whether the
doctrine of judicial precedent is a myth, and non-existent? In another words,
if judges actually overrule or depart from previous decisions, what is
therefore the value of the doctrine of precedent in the administration of
justice? Is it a rule of law or is it merely evidence of the law? A good
answer would require students to cite recent decisions and place particular
emphasis upon the attitudes of judges demonstrated in the process of judicial
decision making.
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Introduction – What is the meaning of Judicial
Precedent?
· The term
judicial precedent has at least 2 meanings:
- The process whereby judges follow previously
decided cases.
- It is referring to the decided cases – a
“precedent” which may be relied on in the future.
·
The doctrine of
judicial precedent is based on the notion of stare decisis, meaning to
stand by cases already decided, and therefore judges would be expected to
decide like cases alike.
·
Stare decisis has two aspects: one concerns the hierarchy of the courts: the place of
a court within the structure of decision making; and the other concerns the
precedential weight or status of a particular decision.
·
It is important to appreciate that the
limitations placed on the courts by the principle of stare decisis are self –
imposed. There are no legislative provisions
on the applications of Judicial Precedent, with 2 notable exceptions:
i)
Our courts must
follow decisions on community law given by the
ii) By virtue of S2(1)
of the Human Rights Act 1998, when our courts and tribunals decide
questions in connection with rights guaranteed under the ECHR, and given effect
to the UK by the 1998 Act, they must take into account relevant judgements, decisions declarations and opinions of the European
Court of Human Rights.
Why is Judicial Precedent so important in the English Legal System?
Students
would require an understanding of the following:-
(a) the concept of separation of powers : emphasizes the symbolic
function and political relationship between the courts and the legislature;
(b)
to prevent retrospective law-making;
(c)
the fact that judges do not speak
in this way;
(d) the administrative factors : the elimination of delay and
reduction of cost primarily; the benefits of 'routine procedure" in the
application of previous decisions as a curb on arbitrariness;
(e)
to provide objectivity in the law :
"like cases to be treated alike";
(f)
to maintain the social values of
predictability;
(g) to
produce expectations and the power of expectations to become normative;
(h)
to achieve a universal sense of
justice.
Ratio Decidendi and Obiter Dictum
·
A ratio decidendi of a case is the principle of law on which the
decision is based, i.e the reasoning.
·
The judge may go
on to speculate about what his decision would or might be if the fact of the
case had been different. This is an obiter dictum – something said by the way.
·
Ratio decidendi
is the binding part of a judicial decision.
·
Obiter dictum
may be of persuasive authority but it is not binding in later cases because it
was not strictly relevant to the matter in issue in the original case.
What weight
should be given to the doctrine?
The
factors to be taken into consideration are as following:
(a)
the status of the statement – ie. whether it is the ration or the obiter of the
decision;
(b)
the court that decided the case within the hierarchical structure ;
(c)
the type of judge involved in that particular decision;
(d)
the question as to whether there was a dissenting judgment;
(e)
the period when the case was decided;
(f)
the status of the precedent with respect to how it fits with the surrounding
law;
(g)
the status of the decision in a later case;
(h)
the reputation that the precedent generally enjoys.
Mechanisms Available to Judges to Depart from Precedents
In
the examination, the issue that could arise is whether the doctrine of
precedent is flexible in nature as a result of the various judicial attitudes
to the extent that it might be diminishing in value and becoming a myth today.
The following mechanism enable the
judges to depart from previous decisions in their exercise of discretion :
1.
Reversing :
This
is simply overturning the decisions of an earlier court when it is heard on
appeal. The appeal court will then substitute its own decision. ( It is
possible to apply both the mechanisms of reversing and overruling in the same
case.)
2.
Distinguishing :
The
doctrine is inoperative if a previous case can be distinguished. This arises
where a case is sufficiently dissimilar on its material facts and the previous
rule need not be followed. A case can only be distinguished on the material
facts and if it is reasonable to do so, but what is reasonable differs
according to the judges. If the notion is carried to an extreme length then
judges can avoid an unpleasant consequence by simply distinguishing a previous
case though it would have been proper to apply the previous case. What is
reasonable is left to the discretion of the judge and this causes a certain
amount of uncertainty.
3.
Overruling :
A
court of competent jurisdiction within the hierarchy of the courts may declare
the decision of a previous case no longer good law. There are reasons for doing
this :-
(i)
The previous court did not
correctly interpret the law;
(ii) The later court considers that the law
contained in the previous ratio should no longer be applicable. Re
United of Railways of Havana & Regla Warehouse was overruled by Miliangos
v George Frank where the former held that damages in breach of contract
could only be given in sterling pounds. It was held in the latter case that the
decision of
Overruling
not only affects future cases but also the present one. It is therefore said to
be retrospective, ie. even though that case started before the precedent was
overruled, it nevertheless is decided according to the new law. This may seem
unfair to parties who may have relied on that precedent only to find that it is
overruled on appeal. It has been suggested that overruling should be
prospective, ie. deciding that a previous decision is wrong but only treating
it as overruled in future cases. However, it is submitted that this could lead
to greater injustice and complications. Law, as a social factor, must serve the
public otherwise injustice may be done.
Overruling
is one important method by which the doctrine of precedent is kept flexible.
When a decision is overruled, the authority is no longer binding either on
subsequent courts or the court itself which is overruling.
4.
Per incuriam
Judges need not to follow a previous decision if its
given “per incuriam”. It means previous decision has been reached through
“carelessness or ignorance of a certain law of binding decision of House of
Lords. This application is very limited, only 3 circumstances which allows ‘per
incuriam”
A) Where previous precedent
was clearly wrong
B) Where the life or liberty
of a person is at stake
C) Where it is unlikely for
the
Are precedents laws or only evidence of the law?
·
An important
jurisprudential debate as to whether judges make law or whether they simply
declare the law, and whether precedent are law or only evidence of the law. 18th
century, Blackstone: “The decisions of
courts of justices are the evidence of what is common law.”
·
1892: Lord Esher in Willis v Baddeley (1892):
“There is in
fact no such thing as judge-made law, for the judges do not make the law though
they frequently have to apply existing law to circumstances as to which it had
not previously been authoritatively laid down that such law is applicable”
·
Professor Cross (1977) argued that
Blackstone and
·
So far as Lord Esher’s statement was concerned,
the application of existing law to new circumstances could never clearly be
distinguished from the creation of a new rule of law. If there were no such
thing as judge-made law, it would be impossible to account for the evolution of
much legal doctrine which had been formulated by the judges and no one but the
judges.
“If a
previous decision were only evidence of what the law is, no judge could ever b
e absolutely bound to follow it, and it could ever be effectively overruled
because a subsequent judge might always treat it as having some evidential
value.”
·
Lord Radcliffe:
“There was
never a more sterile controversy than that upon the question whether a judge makes
law. Of course he does. How can he help it?”
This leaves open the question whether there is not
also the merit in the declaratory theory of law and in the theory that
precedents are evidence of law rather than law itself.
·
When a judge
declares a point of law, he is declaring what he finds the law on that point to
be. He is not saying what he thinks it ought to be but what he believes it is.
In giving his opinion as to what the law is, he may have added something new to
the existing corpus of the law. Many decisions on points of law add something
new in this sense and can therefore be said to be “making the law”. From the judge’s point of view, his function
is to declare the law. From the point of view of the observer, he may be, in
declaring it, added something new or even changes the law. The “declaratory
theory”, and ‘the judge-do-make-law theory”, therefore appear to be right.
Values promoted by the system of precedent
A
catalogue of the values promoted by the common law system of precedent was drawn
up by Professor Hart and Sacks of the
- In Furtherance of Private Ordering
a) Desirability of enabling people to plan their
affairs. Having confidence that they comply with the law so they will not be
entangled in litigation.
b) Desirability of providing private counsel so far as
possible with stable bases of reasoning. Desirability of encouraging the
remedial processes of private settlement by minimising the incentives of the private parties to try
to secure from a different judge a different decision that has been given by
the same or other judges in the past.
- In Furtherance of Fair and Effective
Adjudication
a) Desirability (from the point of view of the
litigants) of expediting litigation and minimising its cost by sparing them the
necessity of re-litigating every relevant proposition in every case.
b) The need (from the point of view of the judicial
system) of facilitating the dispatch of business – indeed, the impossibility of
re-examining de novo every relevant proposition in every case.
c) Need of discouraging a rush of litigation wherever
there is change of personnel on the bench.
d) Desirability (from he point of view of fairness to
the litigants) of securing a reasonably uniformity of decision throughout the
judicial system, both at any given and from one time to another.
e) Desirability of promoting genuine impersonality of
decision by minimising the elements of personal discretion, and of facilitating
the operation of the check of professional criticism.
f)
The propriety of
according respect of the conclusions of predecessor judges.
g) Injustice of disappointing expectations fairly
generated at the stage of primary private activity.
- In furtherance of public confidence in the
judiciary
a) Desirability of maximising the acceptability of decisions
and the importance of this end of popular and professional confidence in
i.
the
impersonality of decisions,
ii.
Their reasoned
foundation.
b) The necessity, considering the amorphous[1]
nature of the limits upon judicial power and the usual absence of an effective
political check at the ballot box, that judges be subject to the discipline and
the restraint of an obligation to build upon the prior law on fashion which can
withstand the test of professional criticism.
Problems Associated with the Law-making by Judges and
the Doctrine of Precedent
- Over-emphasis of the importance of individual
decisions.
- Creates law which may upset expectations with no
advance notice to those likely to be affected.
- The system depends on the accidents of
litigation. A bad decision may stand for many years. Example: R v
- Tends to be backward-looking and conservative,
thus slow to reapond to changing needs.
- Once a point has been decided at the level of
the Court of Appeal or the House of Lords, it tends to remain the law
whether or not it is apt for the situation.
- Often technical problems associated with the
fact that the judges give separate decisions so that it is difficult to
ascertain what the ratio decidendi is, or a judge may give several reasons
for his decision so it makes it difficult for lawyers to discover the
ratio as it is obscure. Also the proliferation of precedents makes it
difficult for lawyers to discover what the law is.
- The Doctrine of Judicial Precedent focuses
attention on minute differences of fact between cases at the expense of
the consideration of principle and policy.
Flexibility and stability in the Common Law System
·
It is not the
system, but the judges that create the balance between flexibility and
stability. However, the system itself does not permit both stability and
flexibility. There is a strong tendency to follow the precedents whether they
are binding or not and whether or not the precedent seems a wise one.
·
A doctrine of
precedent that progressed on the basis that precedent would only be followed
when the court agreed with the decision reached in the earlier case, would be a
weak doctrine. Equally, it would dissipate much of the benefit of stability to
which the system of precedent aspires.
·
On the other
hand, there is no doubt that the doctrine does lead to the perpetuation[2],
sometimes for long periods, of bad conditions. Courts sometimes lack the energy
to change them.
·
However, the
doctrine of precedent has many gaps to permit judges wishing to avail
themselves to the opportunity to refuse to be crabbed by it :
a) House of Lords is not bound by its decisions, nor is
the High Court and the Court of Appeal (Criminal Division) is only lightly
bound.
b) List of exceptions to the rule that the Court of
Appeal is bound by its decisions – Young
v
c) Distinguishment
d) Appeal system allows any principle of common law to
be challenged and thus changed by a court high enough in the hierarchy.
·
A different
source of flexibility in the system is that judges can manipulate precedents,
logic, social policy and all the other bases of arguments presented to them by
counsel in anyway they please. This is not something is usually acknowledged,
but it emerged with great force from an important article by 2 lectures at
London School of Economics in (1981-82). Their paper demonstrates that
frequently, the judges dealt with precedent by simply asserting that it was or
was not relevant, with no explaination or
reasoning to justify the assertion. Case law was sometimes described and
discussed at length and at other time, was simply rejected as being “unhelpful”
without discussion in general, the quality of reasoning in their Lordships’
judgements in the House of Lords proved to be less impressive than one would
have expected.
·
If this is true
of judgements in the House of Lords, how much likely is it to be true of
judgements in the lower courts?
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Points to ponder :
Are there more
advantages of adhering to judicial precedent?
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Advantages & disadvantages of the Doctrine of
Precedent
1. Convenient time-saving device
·
If a problem has
already arisen and been solved in a certain way, it is natural in every walk of
life to reach the same conclusion on the same problem without too much
reconsideration.
·
The English
Legal System has a doctrine of binding precedent under which the previous case
must be followed in the subsequent case.
·
However, it must
always be remembered that decided cases are illustrations of principles of law
which a judge may turn to in deciding the case before him. Precedents should be
used as “stepping-stones” rather than as “halting-places” – Birch v Brown (1931) as per Lord Macmillan. The convenience of
following precedents should not be allowed to degenerate into a mere mechanical
exercise performed without any thought. So the citation of authority in court
should be kept within reasonable bounds because it can be costly in terms of
time and money.
·
Lord Diplock has
warned of the “danger of so binding the court with case that it has difficulty
in seeing the wood of legal principle for the trees of paraphrase”.
2. Greater certainty
- The most important advantaged claimed for the
doctrine of Judicial Precedent. From this advantage, other benefits flow.
- Existence of a precedent may prevent a judge
making a mistake which he might have made if he had been left on his own
without any guidance.
- It may also allow persons generally to order
their affairs and come to settlements with a certain amount of confidence.
- But, the advantage of certainty is lost where
there are too many cases or they are too confusing. This can arise through
the process of distinguishing cases and over-refining the principles
embodied in them.
- Certainty in the law can only result from a
large body of case law if the cases are uniform in outcome and not
reconcilable.
3. The doctrine of precedent may serve the interests of
justice.
- This is one of the objections to the perspective
overruling of cases, but retrospective overruling is also affected by
it.The overruling of an earlier case may cause injustice to those who have
ordered their affairs in reliance on it.
- Problem: The application of precedent may
produce justice in the individual case but injustice in the generality of
cases. It would be undesirable to treat a number of claimants unjustly
because one binding case had laid down an unjust rule.
4. Interests of justice also demand impartiality from
the judge.
- This may be assured by the existence of a
binding precedent which he must follow unless it is distinguishable.
5. Case law is practical in character.
- Based on the experience of actual cases brought
about before the courts rather than on logic or theory.
- The doctrine of stare decisis is a limiting
factor in the development of judge-made law.
- Practical law is founded on experience but the
scope of further experience is restricted if the first case is binding.
6.
Making of law in
decided cases offers opportunities for growth and legal development which could
not be provided by parliament.
- Courts can more quickly lay down new principles,
or extend old principles, to meet new circumstances. There has built up
over the centuries a mass of cases illustrative of a vast number of the
principles of English Law. The cases exemplify the law in the sort of
detail that could not be achieved in a long code of the continental type.
- But, therein lies another weakness of case law.
Its very bulk and complexity make it increasingly difficult to find the
law.
7. Flexible
- A judge is free to lay down whatever rule he
considers desirable in order to keep the law in step with changing social
and economic conditions.
- But, a judge is not thus free where there is a
binding precedent.His discretion is thereby limited and the alleged
flexibility of case law becomes rigidity.
- Judicial mistakes of the past are perpetuated
unless bad decisions happen to come before the House of Lord for
reconsideration.
- Flexibility and certainty are incompatible
features of judge-made law.
- A system that was truly flexible could not at
the same time be certain because no one can predict when and how legal
development will take place.