Essay: Is the doctrine of stare decisis a strength or weakness of the English Legal System?

In order to determine ‘the doctrine of stare Decisis is a strength, not a weakness, of the English Legal System’, one must understand the fundamental principle of doctrine of precedent, Stare Decisis. Stare Decisis in Latin legal terminology means “to stand by things decided“, essentially to adhere to binding and/or persuasive precedents when a similar legal occurrence arises during trial. The doctrine of precedent is the source of Common law. Common law can be defined as case law, which is created through judge’s decisions within cases, in essence precedent. The Doctrine of Precedent is one of the fundamental sources of Case Law within the UK quite simply an influence from past decisions forming a legal principle on future cases with similar circumstances . Based on the legal principle of stare decisis, a judicial precedent is created whilst maintaining and/or being influenced by previous decisions. Which now leads on to which law court must follow a binding or persuasive precedent, the ultimate court in the UK is the Supreme Court which was established in 2009 that replaced the Appellate Committee of the House of Lords, formally known as the House of Lords . Within the UK legal system, previous case law decisions that are in a high court will be binding to judge in a lower court within the same hierarchy of the judicial system, unless judges of lower courts had identified reasonable grounds for distinguishing facts. Be that as it may, should a specific legal principal be found in judgment through a matter of fact in a case, subsequent cases that are similar particulars will be bound by the previous precedent , In essence the rules of Precedent are, The Supreme Court:
1. Is binding on all courts in England and Wales (civil and criminal).
2. Binds the Inner House of the Court of Session and all Scottish civil law courts.
3. Is usually bound by its’ own previous decisions and those of its predecessor, the House of Lords. However, the Supreme Court in certain circumstances can depart from one of it’s own previous decisions
4. The Court of Appeal decisions are binding on itself
5. Court of Appeal cases where 3 or more judges are sitting are binding on cases where only one judge sits.
6. The Court of Appeal decisions are binding on the High Court.
7. High Court decisions are binding on the Country Courts.
Fundamentally, there are two types of precedent: binding precedent and persuasive precedent. To define a what is a binding precedent this can best be described as the ratio decidendi, in Latin term, which means the ‘reason for deciding’. When the facts of a succeeding case have similar circumstances to a preceding case. Effectively a decision made in a higher court that, a judge must follow the precedent from previous cases even though a judge of a subsequent case disagrees on the legal reasoning that led to a verdict .
In contrast, persuasive precedent is not binding by definition but influential in the literal meaning. The flexibility of persuasive precedent will allow a judge to consider adopting such a precedent and may decide if it is a correct principle to adhere too. A Persuasive precedent is an orbiter dictum, that in Latin terms terminology means ‘things said by the way’. According to the doctrine of precedent, persuasive precedent, are is not binding for a judge to base their decision upon. It is a judge’s opinion of the expression referred to in court and as such is not binding legally.
With regards to the question is stare Decisis is a strength, not a weakness, of the English Legal System, one has to evaluate whether there is a precedent and how will the precedent be binding on subsequent cases. Objectively, a precedent is a common law preoccupation that in essence has to determine whether the following exists: One has to objectify does a case contain a ratio decidendi to a particular point of law? Similarly, is ratio binding on subsequent cases?
To critically analyse such, one must consider what are the rules for the doctrine of precedent, and how have these rules been developed overtime. Upon determination of such, the rules must identify which cases that are binding in contrast to those that are not. The doctrine of precedent will be prescriptive on how judicial decisions are practiced with regards to the hierarchy the Judicial System.
So that we can that we can satisfy the question, we to initially have to consider the relative supremacy of the courts hierarchal system prior to which a decision was made. As with most organised structured entity, there will be a reporting system following a determined chain of command, that in essence potential litigation will be able to predetermine what are the precedents are and how will decisions be made based on such and whether to appeal a decision. This allows predictability and consistency for common law to work effective and justly.
This essay has focused on the hierarchy of the English legal system that follows the precedents that are binding and persuasive determining the strength and weakness of the doctrine of judicial precedents based on stare decisis, which can be considered as a case law.
It is essential to understand the judicial system courts hierarchy of UK common or mixed law system, because the hierarchy of the court determine ruling and whether it is likely to be treated as a case law. We need to know which courts are superior in the hierarchy so that we can know which can be overruled or should we follow.
Especially the Civil Law is enforced based on the judicial system hierarchy of court structure, each court will be bound to precedent from a superior court than them. UK Supreme Court, known as House of Lords, binding all other courts within the hierarchy. The Supreme Court hears the case of the greatest public or constitutional importance affecting the whole population.
Below of the Supreme Court is the Court of Appeal, which is divided by Civil division and Criminal division. Both of them are bound to precedent made by the Supreme Court or their own decisions. By hearing appeals from the high court and Circuit court, the court reviews the case from the record made from trial and judge’s notes.
The High Court, which is below to the Supreme Court, is divided by Queen’s bench handling a wide range of contract & tort law, Chancery Division which is dealing with law in relation to issues of equity and Family Division dealing with Family matters. Having a supervisory jurisdiction over sub-courts and tribunals, The High Court deals with complex cases.
The Crown Courts are the highest court of the first instance in criminal cases, however, The County Court is dealing with most civil cases either sentencing after the defendant has been found guilty from the Magistrates’ Courts or full trial with judge and jury.
The Magistrates Courts which is the very blow than Crown courts and County Court deals with the first instance of minor crime such as motoring offenses and minor assaults, where the defendant is not usually entitled to the trial by jury and some criminal matters.
If the claimant has evidence of proving to commit civil wrong things by a defendant, the remedy for claimant would be money paid by the defendant to compensate a loss of claimant. Other remedies, such as prohibit order from a court order to a person from behaving in a certain way could applicable in some conditions. Each party may appeal to a higher court, where appellate courts are only hearing appeals from other lower courts, against the decision.
If the general public raises important point toward cases, the Supreme Court would provide permission to appeal. A simple majority or Unanimity may lead the Court’s decision. From decisions made in the Court of Appeal and the Supreme Court – and the Supreme Court’s predecessor, the Appellate Committee of the House of Lords – become precedents that must be followed by courts in all future cases. This allows that similar cases could be dealt with similar ways.
Upon further evaluation whether or not “the doctrine of stare Decisis is a strength, not a weakness, of the English Legal System”. One has to consider how the doctrine of precedent is forming and maintaining justice. There is an argument that it restricts the law by not keeping up with changes to modern society and the changes to customs, norms and values with more tolerance to matters that may have been taboo in contrast to political correctness through multi-culturally diverse society from outdated concepts. Subsequently, there are strengths and weakness of the stare decisis within the UK judicial systems. To determine the strength and weakness of stare decisis one has to determine should the in the first instance the Court of Appeal should be able to discount a decision of The Supreme Court if held that the evidence on the had not considered the relevant events/circumstance that led to a trail.
An advocate of such was Lord Denning whom firmly believed that judicial precedent should contain flexibility on previous decisions adapting to evolution in time of modern society and that judges should be discretionary with regards to binding precedent . Lord Denning manage to persuade his fellow Lord Justices, that a precedent set by the House of Lords was per incuriam, and had not taken into consideration the previous decisions by the House of Lords.
There are many strengths to Stare Decisis. most notably the doctrine avoids the making of mistakes. Precedents eliminates indiscriminate errors had a judge not been averse to a particular point of law without guidance or reference to rely upon, especially in a rapidly changing society broaden by the European union and its conventions. Stare Decisis is flexible and adaptable to the demands on a growing society. Case law method is constantly evolving introducing new dynamics retrospectively on challenges to particular points of law in contrast to po-active Statute Law that impose rules and regulations periodically once bills have been raised in parliament. The doctrine of stare decisis create greater certainty in particular areas in points of law. Which is probably the most effective strength of judicial precedent. Stare decisis, has greater opportunity to create modern laws. The courts can more quickly lay down new principles, or extend old principles to meet novel circumstances.
Following the incorporation of the Human Right Act 1998 , the doctrine of precedent has been undermined due to European Convention of Human Right 1951 , it is mandatory to all member states of the European Union to take into consideration first the principles and legal rules are a compatible with the rights.
How today’s justices should be deal with yesterday’s decisions ? When conflict with such rights appears, it is mandatory for any legal rules or principles to be amended to ensure adequate protections are being provided to individual human rights. This plays significant roles in overturning previous decisions from the judicial precedent doctrine, unless compatible with the right under the practical legal convention.
Essentially, judges use their discretion when practicing the law. judges are forced to follow binding precedent strictly, and it may cause applying either harsher or lesser punishment than they might be supposed to deserve. Perhaps opponents might argue that it is an advantage rather than disadvantages because there is no ambiguity. However, it could be a constraint to judges when interpreting the law.
There are strengths of using precedents toward the government, solicitors and individuals. For the government’s point of view, using precedent can improve viability by reducing government’s expenditure while saving time and public money.
Firstly, when decisions which were made by previous case law, the doctrine of judicial precedent supports course to ruling the sentence. This certifies that certainty and consistency are being provided within the judicial system and allow a quicker process of the judicial decisions to be effectuated. Impartiality toward cases which have similar facts is applicable for the further cases prevent a judge from ruling injustice or unfairness sentence. Seconds, the solicitor can suggest to the client applicability for proceeding cases with a solid foundation of legal reasoning. Thirds, by recognizing accumulated results of precedent and consequence of outcomes from committing sin, the General public order could be maintained according to the consistency of precedents.
On the other hands, there are drawbacks of applying the doctrine of precedents in terms of out-dated-decisions, restrict the law and possibility of leading English legal system by wrong decisions. First of all, yesterday’s decisions could not be fully dealt with today’s decisions. Society has been changed at a fast speed, and it is hard for the English legal systems to keeping abreast with the latest changes and satisfying needs of modern society. Seconds, rules and regulation have been changed along with society whilst the law regarding the blend of ethics, the core value is immutable. Moreover, independent judges have to follow binding precedent theoretically and It will cause either harsher or lesser punishment than their wrong things. Last but not least, there is a possibility for weakening the English legal system due to following the wrong precedent. A misjudgment by judge and juries could become the wrong precedent which can lead the English legal system in weakening ways.
To sum up, there are many disadvantages regarding the doctrine, such as the unnecessary restrictions, failing to keep up latest-changes toward advanced society, and a possibility to leading English legal system in weakening ways. However, the doctrine of judicial precedent saving time and government expenditure for a viability and maintaining general public social orders. Given the evidence and experts opinion that the advantages of the doctrine of judicial precedent are outweighed by the disadvantages of the doctrine of judicial precedent.