“A proper understanding of the doctrine of precedent will lead you to the conclusion that in many cases the bindingness, which is alleged to be the basis of the doctrine, is more apparent than real” (McLeod, 2011).
In this essay, the reliability of the doctrine of precedent will be discussed. The doctrine of precedent is defined as a principle that like cases should be treated alike (Finch and Fafinski,2017). In medieval England, law was being formed and judges wanted greater consistency and standardisation. Most medieval judges were nominated not because of their ability of interpreting the law, but their social status. In this situation, absurd and inconsistent decisions are often made by the judges. (Lawgovpool, 2014). By the early seventeenth century when judicial reasoning was beginning to be concerned, there was a clear tendency for precedents to be equated with judgements(Ibbetson, 2006).
In the general rule of the doctrine of precedent, each court is bound by the decision of higher court or a court which has equivalent level in the hierarchy. However, there are some exceptions to the general rule. The European Court of Justice is not bound by its previous decision, the Supreme Court is able to depart from its previous decision by using the Practice Statement. The Court of Appeal and the Divisional Courts are also bound by their own previous decisions subject to the exceptions set out in Young v Bristol Aeroplane Co Ltd [1994] KB 718, CA (Finch and Fafinski, 2017).
A precedent consists of two elements which is the ratio decidendi and the obiter dicta of a case. Ratio decidendi can be defined as the fundamental reasons of the resolution made for a particular case, it is also equal to the binding element of a previous decision. In contrast, obiter dicta is the argumentative context of the ratio decidendi. The ratio decidendi is binding the lower court but the obiter dicta is persuasive only (Siltala,2000). The doctrine of precedent is not totally inevitable, the following ways can be used to evade the doctrine: overruling, reversing, distinguishing and legislation (Finch and Fafinski, 2017). Overruling occurs when a higher court repeal the decision of a lower court in a different case while reversing occurs when a higher court repeal the decision of a lower court in the same case. Another way to avoid the bindingness is if the court decides that the cases are not sufficiently similar, distinguishing of the cases may occur. The Parliament can also intervene to reverse a problematic precedent by emergency legislation (Finch and Fafinski, 2017).
In some cases, the doctrine of precedent does not operate. When the facts in the decided case is similar but not directly analogous to the case under consideration, there will no binding. Even when the facts are analogous but the relevant legal rule is from a lower court, legal rule is part of the obiter dicta or dissenting judgement of a case from a higher or equivalent court, or legal rule is part of a judgement of a court outside England and Wales, the doctrine does not operate (ibid.)
So, is the doctrine more apparent than real? Let us look at the advantages and disadvantages of the doctrine before making any decision. The advantages of the doctrine included certainty in the law is provided, people know what to expect as previous decision followed. Consistency and fairness is also provided in the doctrine as same cases are dealt with in a same way. Besides that, it is also more efficient to follow the doctrine, time can be saved as the courts do not have to reconsider the resolution of all the cases every time. For disadvantages, the doctrine causes rigidity because the courts are bound by past decisions. It is also very complex to follow the doctrine as it is hard to find the ratio decidendi and the relevant cases. Another disadvantages of the doctrine is undemocratic, the judges are not elected and should not make law. In contrary to legislation made by Parliament, law created by the judges is backward looking, so following the doctrine causes retrospective effect. (Lawmentor, 2017) (Marked by Teachers, 2015)
Richard Buxton believes that the purpose of any case is not to reform the law but to decide the issue between the parties. Slavish adherence to the doctrine has been described as ‘follow the trail of the calf’ by a nineteenth-century American jurist, Professor Max Radin (Holland,2016). Adhering the precedent without thinking will definitely lead to a absurd decision. Yet, although the Practice Statement allows the Supreme Court to depart from its previous decision, the House of Lords was extremely reluctant to use it. This shows the existence of dangers attached to not following the precedent (Finch and Fafinski, 2017).
On the other hand, Holland(p.155,2016) stated that “Miles Kingston once said that judicial precedent means: ‘A trick which has been tried before, successfully’.”. The precedent is atleast a good guide, it achieves consistency, if nothing else, and it probably will be followed. The Court of Appeal in Howard de Walden Estates ltd v Aggio and others; Earl Cadogan and Cadogan Estates Ltd v 26 Cadogan Square Ltd [2007] EWCA Civ 499; [2007] All ER (D) 408 (May) said: ‘ This principle serves the interest of legal certainty. The need of litigants and their advisers to know where they stand is not served if a lower court is free to create conflict of authority by declining to follow the relevant decision of a higher court’.
In conclusion, the doctrine of precedent is indispensable but adhering blindly to the principle will lead to absurd decision. The ratio decidendi and obiter dicta should be clearly identified before deciding the bindingness of the decision of a higher court on a lower court. If following the precedent will lead to absurd decision, judges should use any possible way to depart from previous decision to prevent injustice. For example, Balfour v Balfour [1919] CA held that a spouse could not sue the other spouse. This case was later on distinguished Lord Denning in Merrit v Merrit [1970] CA. Lord Denning stated that there could be a legal intention between a husband and the wife who are living in amity or are about to separate (Sixthformlaw, 2008). Following the precedent cautiously can prevent injustice, therefore the bindingness, which is alleged to be the basis of the doctrine, is not more apparent than real.
Reference list
Finch, E (2017) English Legal System, 6th edn., Edinburgh Gate, H: Pearson Education Limited.
Holland,J (2016) Learning Legal Rules: A Students’ Guide to Legal Method and Reasoning, 9th edn., Oxford, O: Oxford University Press.
Ibbetson, D (2016) \’Authority and Precedent’, in Godfrey, M (ed.) Law and Authority in British Legal History, 1200–1900. Cambridge, C: Cambridge University Press, pp. 67.
Lawgovpool (2014) The Doctrine of Precedent [online] Available at: http://lawgovpol.com/doctrine-of-precedent/ (Accessed: 10th February 2017)
Lawmentor(2017) Discuss the advantages and disadvantages of the doctrine of precedent.[online] Available at: http://www.lawmentor.co.uk/resources/essays/discuss-advantages-disadvantages-doctrine-precedent/ (Accessed: 10th February 2017)
Marked by Teacher(2015) Judicial Precedent advantages and disadvantages [online] Available at: http://www.markedbyteachers.com/study-guides/judicial-precedent/advantages-and-disadvantages/ (Accessed: 10th February 2017)
McLeod, I (2011) Legal Method, 7th edn., East Kilbride, SL: Palgrave Macmillan
Siltala, R (2000) Theory of Precedent, Oregon, OR: Hart Publishing
Sixthformlaw (2008) Cases-Judicial of precedent in the Court of Appeal [online] Available at: http://sixthformlaw.info/02_cases/mod2/cases_precedent_coa.htm (Accessed: 10th February 2017)
Cases
Balfour v Balfour [1919] CA
Merrit v Merrit [1970] CA
Howard de Walden Estates ltd v Aggio and others; Earl Cadogan and Cadogan Estates Ltd v 26 Cadogan Square Ltd [2007] EWCA Civ 499; [2007] All ER (D) 408 (May)