The doctrine of “Stare decisis”, literally translates to “stand by what has been decided” and provides us with the instrument necessary in governing our legal system of common law. Its’ roots begin in 1066 following King William’s victory at the battle of Hastings and is an essential constitutional organ that, even today, is necessary in applying parliamentary legislation to the every day situations that they seek to govern. A general explanation would be that each court within the jurisdiction of England & Wales is bound by the decisions of the courts that rank equal and above them within our hierarchical system. In 1976, Richard Posner and William Landes coined the term "super-precedent," in an article they wrote about testing theories of precedent by counting citations.[12] Posner and Landes used this term to describe the influential effect of a cited decision. The term "super-precedent" later became associated with different issue: the difficulty of overturning a decision

Binding and Non-binding

Not all of the judgement is binding; is, the reason that the decision was made. It is important to note that, as above, it is only the ratio decidendi that is binding. Anything said within the case that does not amount to be part of the ratio decidendi will not be binding although may be persuasive; this is most commonly referred to as the obiter dicta (things said ‘by the way’) and the res judicata (the actual decision between the parties) however as stated by Build, L 2011, in practice, to differentiate between binding and non-binding is not always as straightforward as it may seem. 

A precedent does not bind a court if it finds there was a lack of care in the original "Per Incuriam". For example, if a statutory provision or precedent had not been brought to the previous court's attention before its decision, the precedent would not be binding. Also, if a court finds a material difference between cases then it can choose not to be bound by the precedent. Persuasive precedent includes decisions of courts lower in the hierarchy. They may be persuasive, but are not binding. Most importantly, precedent can be overruled by a subsequent decision by a superior court or by an Act of Parliament.

The role of Judges

There is over a century of academic debate that stems from the simple question of whether or not ‘Judges make law’. While this paper will not indulge in the fruit of argument to exacerbate this point, we will simply suggest that for the benefit of stare decisis, judges do ‘make law’ (if only to be the author of an interpretation within the very specific confines of a case). As stated by Lord Simmonds in Midland Silicones Scrutton (1961): the courts’ preliminary duty is to “make interpretations of the law”; it is only from this interpretation that a binding precedent or persuasive precedent may be established.

Judges in the U.K use three primary rules for interpreting the law. The literal rule, the mischief rule and golden rule. The problem with these rules is that they allow the judge to bend the meaning over words and thus allows the judge to indirectly make law. The normal aids that a judge has include access to all previous cases in which a precedent has been set, and a good English dictionary.

The disadvantages of stare decisis include its rigidity, the complexity of learning law, the differences between some cases may be very small and appear illogical, and the slow growth or incremental changes to the law that are in need of major overhaul.

Practice Statement [1966] 3 ALL ER 77

To provide a full analysis into the overall effectiveness of stare decisis we must understand the relevance of the Practice Statement [1966]. The primary concern prior to the Practice Statement is that of a case, decided by the ‘Court of last Appeal’, that has binding precedent upon all lower courts and so restricts what was stated by Lord Hope in Austin v Southwark London Borough Council 2010 as being necessary to “protect the proper [application] of the law”.

As argued by Stone, R 1968 this could imply that all cases decided by the House of Lords to that day may have caused an unrecorded injustice on the basis of an ‘out-dated’ binding precedent. In spite of this, Stone also described the statement as the “endless nature of the hierarchy, which implies that no decision is ever final”, and such, at the time of publishing (1968) Stone was not convinced of the problems relating to the doctrine of precedent finding a solution within the practice statement. Russell LJ elaborated in Conway v Rimmer 1967 that the “[practice] Statement said nothing to suggest that this court was in any way freed from the hitherto established principled of precedent in relation to previous decisions” and that by merely providing the tool on which to depart a previous decision is not sufficient to suggest that the doctrine of binding precedent, as a rule of law itself, does not still have the power to bind the court.

On 26th July 1966, at approximately 1500, Lord Gardiner stated the following on behalf of himself and the Lords of Appeal in Ordinary: “Their Lordships… recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of law.”

He followed on to announce that the House of Lords may depart from a previous precedent “when it appears right to do so”. While it will be discussed in further details throughout this paper, Lord Bingham confirmed in Horton v Sadler 2007 that “the power had been exercised rarely and sparingly but that too rigid an adherence to precedent might lead to injustice in a particular case and unduly restrict the development of the law”, thus in failing it would constitute a system that was legally obliged to compound any injustice suffered with all future cases of exact circumstance.

One instance where a court has deemed it necessary to depart from a previous decision is that made in the case of R v R (1991). In this case the court was bound by a previous decision and in order to depart had had to reinterpret the word ‘unlawful’, to be, in the context of wedlock rape, ‘superfluous’. This is a practical use of the Practice Statement and provides a clear solution to a longstanding problem; since the Practice Statement, it is understandable that the doctrine of precedent has remained ‘largely settled’, if not, completely settled.

While this does suggest that the doctrine of precedent is settled, this does however, as suggested in Manchester, C 2011 further present ammunition to the argument of whether Judges do ‘make’ law and are exceeding their constitutional role. It is important to recognise the ‘overlap’ between the judiciary and Parliament, Part 3 of the Constitutional Reform Act 2005 has implemented a Supreme Court in place of our previous House of Lords. In spite of the actual fact that the Practice Statement was never deemed to apply to the Supreme Court, it was stated in Austin v Southwark LBC 2010 that “the Supreme Court has not thought it necessary to reissue the Practice Statement as a fresh statement of practice in the court's own name”. We can therefore establish that while the Judiciary may be charged with making law, of which their role is defined as strictly ‘interpretation’, Parliament is also seen to be interfering with the doctrine of precedent that has forced the hand of the judiciary to apply certain legislation in a subjective way.

Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and increased by further precedent until a result is obtained that is greatly different from the original understanding of the Constitution.

Limitations of the Practice Statement

While the Practice Statement may provide the power to which the House of Lords may depart from a previous decision, it does not mean that they should proactively look to cause a mischief within the doctrine of precedent. As stated by Lord Reid in R v Knuller Ltd 1973:

“I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act … I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament.”

Contrary to this, Lord Reid represents the ‘devil’s advocate’ to his own words where, in R v National Insurance Comr, Ex P Hudson, he stated that it might be appropriate to do so if to adhere to the previous decision would produce serious anomalies or other results that were plainly unsatisfactory.

Perhaps the most devastating of philosophical limitations was highlighted by Lord Denning, M.R. 1967 who stated that “If the Practice Statement is itself a precedent of the House, then the assertions in the Practice Statement are not binding”. That is quite literally that the Practice Statement itself is a legal paradox that, in its own right, does not allow itself to be binding. However Russell L.J 1968 was quick to rebut this comment suggesting that while, as stated in Minnesota Law Review 655, the Practice Statement is itself a form of binding precedent, Denning’s statement of paradoxical nature “violates the logic of the Statement”.

Unfortunately this does present us with a clear problem. Despite the extensive application of the doctrine of precedent, we are unable to predict the discretion of the Supreme Court in overturning a decision previously held by itself (or the House of Lords).

 The literal doctrine of precedent

To fully explore the functionality of stare decisis we will look at the function itself as well as the practice of this function. The physical necessity to establish the system of the doctrine of precedent is simply that we have a clear hierarchy of courts and that we have an accurate system of law reporting. While our court hierarchy is entrenched within our unwritten constitution, our method of reporting cases can be archaic at times. The report must be approved by the relevant court however the organisations consist of various private practice institutions that often report in specific areas of law.

It is therefore a system dependent on the function and accuracy of the individual organisations that, in spite of their function, only report approximately 10 per cent of cases. Thus can we rely on decided case when they are not reported?  This displays a clear flaw in the accuracy of this system and could very well lead (and has led) to decided law being overlooked.

Precedent in practice

To apply stare decisis in practice is somewhat more challenging, it is clear that by the very nature of its flexibility that it ‘works’. However, that can only be said true with certainty in the sense of it providing a vehicle for legislation to be applied to the specific facts of a particular case. The principle that judges “maintain balance” (Dicey A, 1915) is often a romantic view of the role of the judiciary however it is clear that the sheer principle of ‘balance’ would imply that as law evolves it will identify problems and, hopefully, re-establish the equilibrium.

The reality of ‘unproblematic’

A statement that suggests that our practice of precedent is ‘unproblematic’ will undoubtedly depend not only on the individuals’ view of the English legal system but also their personal experience within that system. The definition of ‘unproblematic’, sourced from the Oxford Dictionary, is: “Not constituting or presenting a problem or difficulty”. It is correct that the fundamental social advantage, as stated by Cross, R (1991), is the use of precedent in assisting the prediction of judgement in a case without the need for trial. It would still be far from accurate to suggest that the practice of this assistance presents neither problem nor difficulty. In reality when a precedent is not a direct fit of the case, a number of precedents are used and these are then weighed up by the judge and considered with doing justice in the case. The outcome of this is that some precedents can be overlooked when in the mix with other factors.

The professionally ‘unproblematic’

The normal use of ‘unproblematic’ is difficult to apply in any sense; after all, the sheer concept of an adversarial system is that of ‘problem solving’. The judiciary will undoubtedly have very different opinions of how problematic the doctrine of precedent is. This is clearly stated by Lord Hailsham, Lord Chancellor when speaking of Denning, LJ (deceased): “The trouble with Tom Denning is he's always re-making the law and we never know where we are”. This clearly shows the problematic nature of the doctrine of precedent; while Lord Denning was often referred to as “the peoples judge” (The Telegraph, 1999), it is clear that the precedents he created often conflicted with the future judgements made upon their ratio decidendi. Upon this view we can see that the legal profession, at least at its higher echelons, would not agree that the doctrine of precedent is ‘unproblematic’.

The economic impact

While our primary object is to maintain that ‘justice be done’ and that a fair trial is paramount to our constitution, and more recently by virtue of Article 6 of the Human Rights Act 1998, it is important to include transparency within our court system.

mistakes within the doctrine of precedent

It is important to note that within our modern society, the cost of public services receives rigorous scrutiny; the BBC has released figures reporting that a trial with Jury costs £8,000 to administer. This is aggravated by cases such as Redwing Construction Ltd v Wishart, where Akenhead J misinterpreted a previous ratio decidendi as merely obiter dicta, allowing a seemingly obvious route for appeal and thus encouraged the further need for legal proceedings. This failure to property interpret a previous case is described by Hart, HLA 2012 as “professionally flawed”; the sum of which is in contradiction to S.2(b) of Overriding Objective that states that “Dealing with a case justly and at proportionate cost includes… saving expense”, therefore, a problem caused by the complication or lack of regulation of the doctrine of precedent can not only suffer the parties involved but also the state expense of a further trial and a judicial breach of fundamental practice guidelines.

A spokesman for the Ministry of Justice, when speaking solely of the legal aid provided that: “At around £2bn a year, we have one of the most expensive legal aid systems in the world. At a time when everyone has to tighten their belts, we can no longer close our eyes to the fact legal aid is taxpayers' money and it is costing too much.” The BBC similarly released figures reporting that a trial with Jury costs £8,000 to administer. It is argued that we can objectively see that the use of stare decisis is contributing to the reduction of costs; it is through this practice that the majority of claims are settled outside of court, when a decision will work as a template in the given case.

Conclusion / findings

It is important to firstly understand that the mere concept of ‘problematic’ need not be seen as a drawback; it is the unpredictable and chaotic nature of stare decisis that provides a ‘fair trial’ on which to pass judgement of a case. While it may be true that as described by Dicey, A 1915 the doctrine of binding precedent, as a tool to ‘maintain balance’, will enable the law to evolve with time, it must also be noted that this view was published days after 50,000 soldiers lost their lives in gaining a mere 200 yards in France during the First World War; this was at a time when, as described by Herbert Henry Asquith, Prime Minister ‘Parliaments only concern is to fault the German blockade’, in such circumstances it is understandable that Dicey’s view of balance and the use of stare decisis was so heavily favoured. Similarly, Cross R (1991) suggested that in spite of the unpredictable nature of stare decisis, it was an asset to have any insight that may reduce the need for a trial; unfortunately this to falls short on opinion due to the acknowledgement of fault being shrouded in silver lining.

It would be safe to suggest that since the Practice Statement the parameters of doctrine of binding precedent have been largely settled, the problem of a court being bound by a previous injustice has now been resolved; however the reason it is best to go only as far as saying that it is ‘largely settled’ is that the solution to the problem, as stated by Russell LJ, may in fact cause a paradoxical breach of stare decisis. Further to this, the Practice Statement was in fact only intended to supply a solution to the House of Lords, if Parliament are able to legislate the application of the Practice statement (that is of course the role of the Judiciary), as per the Constitutional Reform Act 2005, then can it ever really be said that the doctrine of stare decisis is ‘settled’? Unfortunately this only lends itself to the overall questions of whether it is in actual fact to be considered ‘unproblematic’.