Essay: Advantages and disadvantages of the doctrine of binding precedent

Essay topic: Critically evaluate the advantages and disadvantages of the doctrine of binding precedent in English courts.
In the English legal system in the United Kingdom, according to the Act of Settlement 1700, “judges should theoretically make their decisions based purely on the logical deductions of precedent, uninfluenced by political or career considerations.” Back to the common law system in the United Kingdom, it is based on the doctrine of judicial precedent, and stare decisis is the basic system of precedent. The doctrine of judicial precedent can be divided into binding precedent and persuasive precedent. In this essay, binding precedent will be discussed. The principle of binding precedent is that a higher court is binding a lower court. The lower court must follow the decision that made by a higher court. On the other hand, a higher court may consider the precedent of a lower court, but they are not bound. R.Cross and J.Harris in Precedent in English Law concluded the doctrine of binding precedent: “every court is bound to follow any case decided by a court above it in the hierarchy, and appellate courts (other than the house of lords) are bound by their previous decision.” Generally, the binding is referred to the hierarchy of the English legal system, and judges cannot distinguish, overrule or reverse the precedent. The purpose of the doctrine of binding precedent is to ascertain that all the similar cases are decided in a regular and fair way.
Ratio decidendi is the binding part of a case in the system of binding precedent. It is the Latin of ‘reason for deciding’, considered as part of the judgment. It must be followed with the similar cases in the future.
Both strengths and weaknesses are shown in binding precedent. To start with, the first advantage of the binding precedent is prompting justice. According to the perspective of the eighteenth-century legal commentator, William Blackstone, stated that “The judge being sworn to determine, not according to his private sentiments…not according to his own private judgment, but according to the known laws and customs of the land: not delegated to pronounce a new law, but to maintain and expound the old one” With this statement it can be seen that the binding precedent plays an important role in prompting justice. The judge may be affected by emotional feelings. However it can be avoided with binding precedent as lower courts must follow the decisions made by higher courts.
Secondly, binding precedent ensures cases with similar facts can be referred back to the former cases. It provides sufficient materials and resources for judges to make decisions. In the case of Grant v Australian Knitting Mills [1936], the clothing manufacturer was charged with negligence of their own products, which they did not ensure the safety of the clothes and thus leaded to the personal injury of the consumer. Followed by the precedent of Donoghue v Stevenson [1932], the clothing manufacturer had the responsibility of the consumer’s injury. Efficiency is shown under the system of binding precedent. It saves time of the judiciary as well as reduces financial burden of the client. The solicitor or barrister can predict the outcome of the case by following the precedent, thus they can give the best advise to their clients.
Thirdly, flexibility is achieved as inappropriate decisions of the former cases can be overruled or distinguished by the courts. Meeting new circumstances and values is essential for he ever-changing society. In general, precedent should be adapted to the changing society and economic in order to assure that the law can be applied to everyone’s needs. Using the case R v R [1992] as an example, it is about a husband is held responsible for raping his wife. The judge Lord Keith stated ‘A live system of law will always have regard to changing circumstance’. This decision changed the previously held common law position that dated back hundreds of years. In ‘History of the Pleas of the Crown’ (1736), Sir Matthew Hale wrote, ‘The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up this kind unto her husband which she cannot retract.’
Firstly, the complexity of law and vast of case law. There are million of cases and law reports and they will only increase from time to time. Judges may find it difficult to identify which case to follow and sometimes they are unable to point out the ratio decidendi of the precedent clearly. Because different judges reflect different point of view toward the case, therefore they give their own reason for the decision. It means that the conclusion could be very different from the other judges. In addition, Judgments with unclear distinction between ratio decidendi and obiter dicta further complicates the law.
Secondly, the weakness of binding precedent is rigidity. As lower courts must follow decisions of higher courts according to the rules of judicial precedent, bad decisions made in the past may be perpetuated. Changes in the law will only happen if parties have the courage, persistence and money to appeal. Furthermore, distinguishing a precedent can only be made when judges can make distinctions between two cases. This increased cases with very similar facts and thus results in complexity.
As mentioned above, changes in the law take time and money. Although meeting the social needs could be the strength of binding precedent, the period of changes in law could not compared with the changes speed of the society. By using the case of Addie v. Dumbreck [1929] AC 358, it was overruled by British Railways Board v Herrington [1972] AC 877. Both children in two cases were injured when trespassing the defendants’ properties. In the Addie v. Dumbreck [1929] AC 358, the judge stated that “no duty of care was owed to trespassers” Although the facts were similar in both cases, judge in later case considered the change of society: “In my opinion the Addie v. Dumbreck formulation of the duly of occupier to trespasser is plainly inadequate for modern conditions, and its rigid and restrictive character has impeded the proper development of the common law in this field. It has become an anomaly and should be discarded.” In these two cases it can be seen that although the overruling was succeed, it took 43 years for the law to adapt to the ever-changing society. It means that some outdated cases still exist in today’s society and it may result in poor adaptability.