The aim of this essay is to examine the quotation made by Lord Woolf CJ with regards to certainty and flexibility within the doctrine of judicial precedent; it is important to consider the principles of judicial precedent that facilitate certainty and flexibility within the law and also the principles that cause weakness. The importance of the ingredients of judicial precedent will be highlighted throughout the essay; the hierarchy of the courts and law reporting. The distinction between binding and persuasive precedents will be made. The basic facts of legal reasoning and material fact will be a point of discussion within the essay. The avoidance of judicial precedent by judges will also be examined. Finally, the advantages and disadvantages of precedent will be considered with the intention of reaching a conclusion. Conclusions offered at this point of the essay are; the doctrine of judicial president can ensure certainty within the law as well as providing flexibility provided that a balance is reached between the two.
The traditional function of a judge is to decide upon cases in accordance with the existing legal rules, rather than to create law. However, judges must refer to previous cases heard to find these legal rules and in accordance with judicial precedent are bound by them. Judicial precedent is a legal ruling stated in a judgement that will be applied in future cases concerning similar issues. If a decision has been reached in a case, it then stands as ‘good law’. The English system of common law has been developed on the principle of judicial president, originally named in Latin; Stare decisis meaning stand by cases already heard, it is believed that this produces consistency, certainty and predictability within the law.
The hierarchy of the courts is an essential element in the system of precedent. The highest courts in the English legal system such the House of Lords (HL) are more important than the lower courts and therefore carry a superior legal ‘value’. The HL decisions bind all other courts except the HL itself. In 1996, HL issued a practice statement saying that they would depart from previous decisions where they felt ‘necessary to do so’. The Court of Appeal (CA) is bound by any decisions previously made by the HL and is generally bound by its own decisions except; where there has been a conflict between two previous cases of the CA, a previous CA decision has been overruled by the HL or a previous decision was made in ignorance of case law authority that would have affected the outcome of the case. The CA can ignore one of its own previous decisions if it is found to be inconsistent with European Community law. The Divisional Courts must follow decisions of the HL and the CA and are also generally bound by their own previous decisions.
The Ratio decidendi; meaning the statement of legal principles given by the judge in a case material to the decision is the binding element in judicial precedent, Carlill. When similar cases refer to previous judgements for precedent, they will look for the rule of law contained in the ratio decidendi. Not every statement of law that the judge makes will form part of the ratio decidendi. Every decision will contain the following elements;
- The conclusion of material facts;
Statements of legal principles that can be applied in potential similar cases to solve legal problems; and
- A judgement that will arise from the consideration of material facts and statements of legal principles.
For the purpose of judicial precedent statements of legal principles that can be applied in similar cases, is the vital element of the decision known as the ratio decidendi. Therefore it can be recognised as the statement of law that is applied to resolve legal problems raised by the facts of the case. The other two elements of the decision will not have any binding element, but the judgement will obviously have an effect on the parties involved in the case.
When direct facts of a case are similar or even identical to a previous case, the judge or jury are not bound to conclude the same inferential facts; Qualcast Ltd v Haynes ‘the HL held that this was not the correct approach, since the cases relied upon by the judge were based upon inferences of fact which were not binding’.
The obiter dictum is any statements made that are not part of the legal reasons given for the decision that has been reached, Donoghue v Stevenson. The obiter dictum may have a persuasive force but are not binding on any other courts. Statements may be regarded as obiter if they are found based upon material facts or facts that do not exist, High Trees House. However, in the present state of the law the HL can on occasions limit the isolation of the ratio decidendi by stating a new rule of law and expressly rejecting earlier decisions; their statement will then be treated as binding even if it is not essential to the decision Hedley Byrne.
There are ways in which judges and courts can avoid judicial precedent by; reversing, overruling, distinguishing or departing from precious decisions. Reversing occurs when a case from a lower court is appealed on which a different decision is reached. The effect is to ‘reverse’ the lower courts decision, changing the outcome of the case. Reversing is different from overruling as the latter will not change the outcome.
A higher court can overrule the rule of law used to make the decision in a lower court if they feel that it was incorrect. This does not overrule the outcome, but only the rule of law used. This highlights the fact that the common law is only subject to development when a problem in the current law arises as in R v R.
Distinguishing allows the doctrine of judicial president to be adaptable and flexible. Distinguishing allows lower courts to justify the application of different principles on the grounds different material facts. The ratio decidendi of a case is based upon material facts; in order for courts to be bound by the precedent the case must share same material facts. Therefore, the courts can apply different principles if the facts of the case differ. However, there are some limits that the courts are unlikely to exceed, England v Cowley. Finally, courts can depart from its previous decisions in certain circumstances i.e. where ‘the times have changed’.
In the operation of binding precedent it is essential to provide access to previous judicial decisions. Private reports had numerous problems; they were occasionally inaccurate and their publication was often slow and expensive. As a solution the Council for Law Reporting was established in 1865 aiming to produce quick, cheap and accurate law reports. This is the system of law reporting that provides records of precedent today.
The doctrine of judicial precedent proves to provide a number of outcomes which are the following;
Laws are consistent; cases concerning similar issues are judged upon the same basis and are therefore not subject to the decision of one judge deciding the case of his own accord. This is a very important aspect in justifying the doctrine as it provides formal justice.
Provides certainty; the advantage of consistency within the doctrine of judicial precedent provides certainty within the law C V DPP. The binding element of precedent; ratio decidendi which incorporates material facts are fundamental elements to certainty. The result of a case or particular legal question is likely to be predictable based on the outcomes of similar cases. When a precedent has been set, citizens of the state can feel secure in abiding by the rule as they know it is binding and unlikely to be changed in the next case as lower courts are bound by higher courts i.e. HL.
Creates efficiency within the law; judicial precedent saves the time of the judiciary, professionals and their clients as cases generally do not have to be appealed. Clients also save money in court expenses as they can receive advice based on the outcomes of similar cases that have been held.
Finally, the doctrine produces flexibility; There are a number of ways in which judges can manipulate the common law in order to develop a particular area of law without the need for new legislation e.g. R v R was developed in the courts recognising a change in social attitudes towards women. However, the negative aspect to this development is that it demonstrates that an accident must occur in order for the development of law; flexibility is achieved by previous decisions being overruled or distinguished. The HL are not always bound by their previous decisions as per the practice statement issued in 1966 stating that they would depart from previous decisions where they felt ‘necessary to do so’. Another example of the doctrine providing flexibility is the law on intention in murder cases that evolved through the court reacting to the case before them.
The advantage of flexibility potential contradicts the notion of certainty within the doctrine of judicial precedent, although there are other disadvantages of the doctrine;
Creates uncertainty; the doctrine can be undermined by the total number of cases to be reported and cited as authorities. The ability of the judiciary to shape the common law through distinguishing through the facts of cases, which decides whether the previous case will be binding or not decreases the certainty of the doctrine further.
Binding precedent creates fixity; judicial precedent provides for a binding precedent relating to particular legal issues to become rigid based on an incorrect precedent i.e. R v R which allowed rape within the marriage until recent changes.
Acting unconstitutionally; the intended role of the judiciary is to apply the law as it was intended, by developing or making laws judges may be acting outside the scope of their powers and therefore unconstitutionally.
In conclusion, the fact that cases are judged based upon similar issues provides an element of consistency to the law. The results of a cases or particular legal questions are likely to be predictable based on the outcomes of similar cases therefore demonstrating certainty within the doctrine. The system creates efficiency within the law by saving the time of the judiciary, professionals and their clients as cases generally do not have to be appealed. Judges can manipulate the common law in order to develop a particular area of law without the need for new legislation, highlighting the flexibility that the doctrine permits e.g. R v R.
However, the ability of the judiciary to shape the common law through creating distinctions between the facts of cases can decrease the certainty of judicial precedent. The binding element of precedent can create fixity; if particular issues were to be incorrectly addressed. When judges develop or create laws, they could be acting outside the scope of their powers and therefore unconstitutionally.
The binding element of judicial precedent; ratio decidendi which incorporates materials facts of the case provides a degree of certainty by binding the lower courts to the decision reached in a case, whilst the ability of the judiciary to use mechanisms such as overruling and distinguishing between cases and the capacity of superior courts to change the law allows for development of the common law and therefore provides flexibility within the doctrine of judicial precedent.
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