Case Law and the Doctrine of Precedent

In this essay I will be going over numerous sights that will assist me answer the given concern. My first point is on the Hierarchy of the courts In this point I will describe the different ‘levels’ there are in the English system. My 2nd point is Stare Decisis and what it is. This point is comprised of a number of concerns that I will answer; why have binding precedent? What has to be followed? That is Obiter Dicta and Ratio Decidendi? What is convincing precedent and who utilizes it and how it is used? When is a judge bound? Can the Stare Decisis be avoided? And last but not least: How has Stare Decisis handicapped the development of the English law?

The hierarchy of the courts.

The English system is comprised of a hierarchy of courts. Hierarchal means that the courts which are high in the system hear appeals from the ones listed below them. The decisions made in the higher courts are of fantastic importance.

Because these courts are the most affordable they do not bind any other court other than themselves.

There are two courts on the higher level. The High court which deals with cases pertaining to civil matter of unlimited value and the Crown court which deals with serious criminal offences. The High court has four sections: the Chancery division which deals with matters pertaining to equity, the Family division which deals with family matters, the Queen’s Bench division which deals with civil matters and the Divisional court who hears the appeals from civil prerogatives of the lower courts. The High court is not bound by its previous decisions but it can make precedents for the courts below it. Like the High court, the Crown court is bound by all higher courts. It doesn’t make binding precedents but their judgments form persuasive precedents when a High court judge sits in the Crown court. It
also is not bound by its past decisions.

The Court of Appeal is the next step higher. This court is the most important of the hierarchy even though it is not at the top of the system. This court is important because it hears appeals from lower courts in both the criminal and civil matters. There are three judges who sit to hear an appeal. Two of these judges must be Lord of Justices of Appeal. The third judge could either be a judge from the High Court or the Supreme Court. The name given to the head of the Court of Appeal is the Master of the Rolls.

The Supreme Court is the highest appellate court in the hierarchy. It hears cases on appeal from the Court of Appeal. Sometimes the appeal will come straight from the High Court or the Crown Court. This only happens if there is a case which involves the important question of the law. The people who sit in the Supreme Court are called Justices of the Supreme Court. There are at least three to five Justices who sit to hear appeals. It the case is very important than seven sit to hear the case. There can only be at most twelve Justices in the Supreme Court.

The Privy Council is the highest court in the Commonwealth nations and civil appeals. Some of the judges who sit in the Privy Council are those which make up the Supreme Court. The Privy Council is not a part of the hierarchal system and so its decisions do not bind the English Courts. Even though the decision of the Privy Council does not bind English courts, the judges are the same that make up the Supreme Court of England; there is a section of the Supreme Court that is persuasive precedent. Following the case of R v James Karimi (2006) the Court of Appeal found out that in certain circumstances the Privy Council can bind the English courts and overrule previous precedent.

Stare Decisis
Stare Decisis means ‘to stand by things decided.’ Stare Decisis is one of the main things that makes up the case law system. This makes judges bound to follow the previous decisions of higher courts in similar cases. This simply means that judges must obey previous judicial decisions of higher courts.

This question is often asked: Why have Stare Decisis and why not let judges use their own conscience and wisdom to decide a case? As with everything there are advantages and disadvantages of creating something. The advantages of having Stare Decisis are that it promotes certainty, consistency and predictability. Professor Geldhart said that certainty is promoted by consistency of judicial making. Similar cases should have the same outcome.

Certainty promotes predictability and this reduces the possibility for trial because everyone will know how certain cases will be decided.it also limits the potential for the declaratory theory to take effect. The theory is put into place to reduce judges who are not elected not to make law. The role of the judges is to apply and interpret. Law is made in Parliament and it represents the will of the people who elect the members of parliament. It also promotes justice. This type of justice is Aristotlean justice. This means that fairness is given equally of legal principles. The system is the same for everyone and so similar cases should be dealt with the same way.

Disadvantages are that it makes the law rigid and inflexible. The law is not able to develop and is stuck. Precedent binds even if it is old and outdated. The discretion of the judge is that he must follow and abide by the decisions made by the judges before him no matter how old or outdated it may be. This also makes the law stuck and not develops to meet the modern day changes. The amount of case law precedent adds up to uncertainty. Case law and its precedents are contained in thousands of reports starting from the middle ages. It is difficult for lawyers and courts to go through them and find similar cases. It is not easy for judges to find the binding part (Ratio Decidendi) of any case.

Ratio Decidendi is the reason for coming to the decision. This is the principle in which the court uses to make a decision. The ratio is the rule expressed by the judge to the extent that is necessary for the judge to come to his decision. Obiter Dicta are the things said by the way and other things which so not make up part of the decision making.

When is a Judge Bound?
As I stated earlier, a court must follow the decision of a higher court and its earlier decision. The system works in a way that makes binding precedent operate in a way to tie the hands of the judge. When the ratio binds any part of a court depends on the original decision that was made. The Supreme Court binds the Court of Appeal, which binds the High Court which binds the Magistrates, Crown and County court. Courts also bind themselves because of its earlier decisions. The only exception is the Supreme Court who makes its own decisions and is not bound by any other court because it is the most senior.

Before 1966- Judicial Precedent
HoL announced that they would no longer consider themselves absolutely bound to follow their previous decisions. Binding precedent remains the foundation of the English System of case law. The earlier decisions were based on conditions which no longer triumph and in modern conditions the law ought to be different.

Judges are bound by similar cases. Judges in the latter case are bound to apply the same ratio used in early court where the two cases were based on the same issue. If the matter of a case is similar but has facts that similar to al later case, they differ and the issues are not all similar and the court is then not bound to apply the earlier precedent. This is called distinguishing.

Can the Doctrine of Stare Decisis be avoided?
Reversing occurs when a court higher up in the hierarchy downturns the decision of a lower court in the same case. A decision made in a certain case by the Court of Appeal will bind all future lower courts and it would bind itself. This can be avoided id the appeal went straight to the Supreme Court who would reach a different decision. The court of Appeal’s decision would have been short-lived precedent and the Supreme Court decision will take place of the previous one.

Overruling is replacing one precedent with another which helps develop the law. Reversing is where a higher court substitutes a principle made by a lower court in the same case. Overruling involves a higher case substituting a principle set down by a lower court in a different and earlier case.

My conclusion is thus; the principle of Stare Decisis has handicapped the development of the English Law because it makes the law rigid and inflexible. The law is not able to develop and is stuck. Precedent binds even if it is old and outdated. The discretion of the judge is that he must follow and abide by the decisions made by the judges before him no matter how old or outdated it may be. This also makes the law stuck and not develops to meet the modern day changes. The amount of case law precedent adds up to uncertainty. Case law and its precedents are contained in thousands of reports starting from the middle ages. It is difficult for lawyers and courts to go through them and find similar cases. It is not easy for judges to find the binding part (Ratio Decidendi) of any case.

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