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Essay: How do Stare Decisis and Judicial Precedent affect the development of law?

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  • Published: 12 January 2017*
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Introduction
The aim of this essay is to discuss how Stare Decisis and Judicial Precedent affect the development of law, do they hinder the development or not. Judicial Precedent is the process where the judges follow the cases with similar facts that has been previously decided. The doctrine of judicial precedent involves an application of “Stare decisis” which means “stand by cases already decided”, the decision made in one case in higher courts, is binding in lower courts on all cases of similar facts and each court is bound to follow the decision of a court above it in the court hierarchy. In other terms the judge must use and follow the similar decision that made in previous cases. In addition, for the doctrine of stare decisis to be functional with the English Legal System, it has to strictly follow the court hierarchy. This principle organises courts according to the level of power they have got, making higher courts decisions undoubtedly binding over lower courts. This essay will explain the ways in which in courts may depart from previous decisions, stating the influence of overruling, reversing, distinguishing and the practice statement over the development of law in order to asses the influence of the doctrine of precedent in the development of the English judge-made law.
Stare Decisis does not hinder the development of law
Judicial Precedent allows a greater certainty in the law which is one of the most important advantages. The existence of judicial precedent can prevent judges making a mistake which he could have made without any guidence. for example if a case was decided in a particular way in the past by the court of appeal and House of Lords, the doctrine of stare decisis would make the court make the same decision as the case in the past if they face the same situations. Doctrine of Judicial precedent does not apply in all cases, there are three ways to avoid precedent which are overruling, reversing and distinguish.
Overruling is a method when the decision made by lower courts can be overturned by a higher court in a different higher case. For example a decision made by High Court can be overruled by Court of Appeal if the previous court did not apply the law correctly, In English courts the overruled case is regarded as never having been law and will not be applied in later cases .The case R V R sets an good example of overruling. In this case the court higher in the hierarchy departs from a decision made in a lower court which made the previous decision no longer binding. In the case the defendant was charged with the attempted rape on his wife, at that time husband and the wife has separated but without formal legal separation. The prosecution claimed that the husband had broken into her parents’ home and raped her. This case has challenged and overruled that the rule set in 1736 by Justice Hale, the husband cannot be guilty of rape committed by himself upon his lawful wife”
Distinguishing is used by the judges to avoid following a previous decision, which they would normally be bound to follow. The Judge can apply this method if the facts in the present case are significantly different. The case Merritt v Merritt was distinguished from the case Balfour v Balfour, these two cases dealt with intention to create legal bounds between a couple. In Balfour V Balfour the husband who worked overseas agreed to send payments to his wife who stayed in England for medical treatment until she returns, but later on the husband told his wife they should remain separated and stopped the payment. Later on the wife sued him asking for him to keep on sending money, demand that Mr.Balfour agreed with. The claim eventually failed because it was only a social and domestic issue between husband and wife, within which legal relations were not intent as there was not a clear intention to create a binding and legal contract. In the case Meritt v Meritt the couple were married and borrowed loan from the bank to build their house, but then the husband left his wife and went to live with another woman, after he left there were still bank loan owned by him and his wife. Mr.Meritt was agreed continued to make payment to his wife every month to make her meet the payment of bank loan, also after all the loan is paid off, he was agreed to transfer his ownership of the house to his wife. However when the time come Mr.Merritt was refused to make the transfer. Merritt v Merritt were able to distinguish from Balfour v Balfour there were material differences in facts The Court of Appeal distinguished.
Reversing is a methods of avoiding precedent used by court higher up in the hierarchy where it overturns the decision of a lower court on an appealing case. The purpose of it is to help the development of law as for them consider law changes as societies changes. In the case Gillick v West Norfolk & Wisbech Area Health Authority, the final decision was reversed by the Court of Appeal and went to the House of Lords. The case involves should doctor provide contraceptive treatment to girls under 16 years old without out parents knowing. The case was dismissed at the first time in High Court but then it was reversed by the Court of Appeal , then in 1985 it went to House of Lords, the decision came out that in certain circumstances a child under age of 16 would give consent to medical treatment including contraceptive treatment without agreement of parent. After the decision has been made the case has been used as a guide if there is similar cases with children under age of 16.
Judicial precedent hinder the development of law
However, Judicial Precedent can be a limitation in the development of judge made law. Judges are not free to lay down the rule which they thinks is desirable to, but only depart from decisions in order to keep the law updated with changes in social and economic condition if there is a binding precedent, which affects the flexibility of case law. The problematic with the system of judicial precedent is that it is very inflexibility which lead to the law to develop very slow and does not keep up the changes and development in the moredon society. Judicial precedent does not promote changes in law. The case R v R also shows that law is extremely slow to change because of the doctrine of precedent, it makes many people think that is is almost impossible to make a change and there is nothing they can do about it. In that case the House of Lords abolished husband immunity from criminal liability for raping his wife.The House of Lords took the perspective that the law expected to mirror desires of modern societies with contemporaneous perspectives and thought it just legitimate that it took the chance to act. Furthermore, the practice statement states that the House of Lords is not absolutely bounded by its own previous decision, and has the ability to do so in cases that are particularly especially in material of facts. In the case of R v G&R , the House of Lord overruled the previous decision in MPC v Caldwell by redefining the reckless test of criminal liability for the offence of criminal damage under the criminal damage act 1971. The practise statement can be said to help in the process of developing law as for it does not absolutely binding the House of Lords, but allows them to depart from precedent when they consider is right to do so.
Conclusion
To sum up, this essay has explained how does the system of Judicial Precedent work and how does it affect the development of law positively and negatively taking into account the three method of avoiding precedent which are overruling, reversing and distinguishing, for each of them there is at least one case as an example to support the point. Judicial Precedence benefits the law system because it crease certainty and fairness and saves time. But it also does hinder the development of law in some way as for it can be applied with extreme rigidity and therefore considerably slow down the law development. It hinder the development law because it generates binding precedent which the court in lower hierarchy can not be depart from, it keeps the wrong decision and pass it on, but if stare decisis hinders or not the development of law or not depends on the approach, whether if extrictly rigid of more flexible, that the court have (following the structure of court hierarchy) towards each individual case.
 

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