The doctrine of Precedent
Introduction
The doctrine of “stare decisis” sits at the heart of the English Legal System. First, this article will outline the origins of precedent and its fundamental workings. Second, it will assess the relative strengths and weaknesses of the doctrine. Third, it will critically discuss whether the doctrine sits at the systems heart through analyzing its wider operations. Lastly, this article will conclude its findings.
What is precedent?
The common law system is distinguished by the doctrine of “stare decisis”, translated from Latin as “stand by what has been decided”, or binding precedent. It is a principle of practice, built up through the common law since its inception in medieval times and is made up from both custom and judge-made law (Lawson, C.M, 1982). Precedent dates back to when laws where first documented by the Anglo-Saxons in 1066 by the first law courts set up by King William I the Conqueror, following his victory at the Battle of Hastings.
Judicial precedent, more commonly known as Case Law or judge made law, is not idealistically a set of rules but more of a practice or guideline used by the courts for own guidance. This means future cases with the same material facts must be decided in the same way. It creates a level of certainty and fluency when judges are passing judgments. It is not always binding in law and can be persuasive depending upon the court.
Within the hierarchical structure of the English courts, a decision of a higher court will be binding on a court lower than it in that hierarchy. The European Court of Justice remains the highest authority in European Law. For other matters, the UK Supreme Court is the highest authority. After the 1966 Practice Direction, the House of Lords (HOL) and now Supreme Court are no longer bound by their previous decisions.
When judges try cases they will check to see if a similar situation has come before a court previously. If the precedent was set by a court of equal or higher status to the court deciding the new case then the judge in the present case should normally follow the rule of law established in the earlier case. It is important to establish that it is not the actual decision in a case that sets the precedent; that is set by the rule of law on which the decision is founded. This rule, which is an abstraction from the facts of the case, is known as the “ratio decidendi” of the case.
Not every precedent is binding effectively. Some are simply persuasive and may derive from “obiter” observations by a judge or decisions from a lower court. For instance, the High Court, at first instance (trial stage), are persuasive authority for later cases in the High Court. Decisions from other Courts in the Common Law realm would have the same effect. The Australian case of Sutherland Shire Council v Heyman (1985) was persuasively applied in the decision of Murphy v Brentwood DC (1990). In Murphy the earlier HOL precedent set in the case of Ann v Merton London Borough Council (1978) was deemed faulty as it did not relate to the real facts of the case. The HOL felt justified in departing from Ann on the ground that the case was unsatisfactory.
With this said, and according to Lord Simmonds in Midland Silicones Scrutton (1961), the courts preliminary duty is to “make interpretations of the law”. Precedent is perhaps a central concept for the judiciary then because it equips them with an authority in all important cases, whether they are merely persuasive or actually binding. After the Declaratory Theory, judges are stringently bound to precedents and they have few opportunities to depart from precedents (Hale, Sir M, 1979).
As such, the principle, in its bare elements, arguably does “lie at the heart of the English legal system”. It regulates the entire judicial system, which in itself is important because it is an essential constitutional organ that is able to both interpret parliaments law in unique case scenarios and “maintain balance” (Dicey, A, 1915) on the Laws Parliament actually make.
Strengths and Weaknesses of the Doctrine
There many advantages and disadvantages that the doctrine of “stare decisis” has been observed by academics and judges to have. This paper will now provide an outline of these relative advantages and disadvantages before critically analysing why the doctrine still remains at the heart of the English Legal system.
Strengths
In terms of the doctrines usefulness, the main element is that the judiciary and legal representative’s time are saved because similar cases do not need to be reargued in order to decipher which principles can be used to correctly settle a case (Cross, R, 1991). In light of the cuts to legal aid services and high representation fees, it naturally saves litigants money in court expenses because they can request that their solicitor or barrister advise them on how their individual case is likely to be decided in light of cases that had been settled previously on identical or similar points. As a result, another advantage arises in that because a legal rule has been established in one case, people can act with regard to that rule relatively secure in the knowledge that it will not be changed by some later court. The courts themselves will be able to use these principles as a guideline to confidently justify their own judicial reasoning and in theory provide judgements with a high degree of uniformity (MacCormick, N, 1978). With this said however, judges can also use their perceived “unimpeachable reasoning” (Hayek, F, 1982) to flexibly adapt the understanding of the law even further. This refers to the fact that the various mechanisms by means of which the judges can manipulate the common law give them opportunities to develop law in specific areas without waiting for Parliament to enact legislation.
Weaknesses of Case Law
Despite the multifunctional purpose of these practical principles, there are several key limitations in their application. Firstly, the doctrine of “stare decisis” is undermined by level of uncertainty created by the complete number of cases that have been reported which can then be used in courts as authorities. This uncertainty is greatly increased by judges being able to select which authority to follow through using the mechanism of distinguishing cases on their facts (Patricio A Fernandez 2012). In this sense then, the seemingly flexible principle of distinguishing becomes much more unreliable. As such, it can be argued that these particular principles sitting at the heart of English Law are actually inflexible too.
Secondly, it can be argued that precedents contain a level of “fixity”. This relates to the possibility that the law in any area might become fixed on the foundations of an unfair and unjust precedent. Normally judges refuse to indulge in judicial creativity when there is recent or regular legislation or where the matter is a policy one (Griffiths, J, 1997). The consequence is that previous injustices can be made seemingly perpetual and applied to a range of cases before they are challenged. An example of this was the 250 year delay in the recognition in R v R (1991) that for a man to rape his wife is completely outdated. There was no definition for rape which simply said that it is “a felony to rape a woman” but for the Sexual Offences Act 1976. Rape was defined as “unlawful sexual intercourse” in that Act. Only after this precedent was set could a husband indicted for rape and placed this act within marriage as a new crime.
Lastly, there is the potential for precedents to be unconstitutional. This presents a fundamental question that refers to the fact that the judiciary are actually stepping out of their theoretical constitutional role by “physically creating law” (Manchester, C, 2011) rather than limiting themselves to the role of just applying and interpreting it.
Why “stare decisis” can be justified
Why “stare decisis” can be justified as something that sits at the heart of the English legal system. As this has been shown, on its surface, the doctrine of “stare decisis” is a crucial mechanism which “oils the wheels” (Kairys, D, 1998) of the English Legal System as it not only streamlines the process of judicial decision making but crucially allows for the laws enacted by Parliament to have their meanings stretched to find the “golden mean” (Elliot and Quinn 2013) amongst unique factual circumstances. It also allows judges to question the current law and adapt it to the ever changing behaviours and needs in society. On the other hand, below the surface, the cogs in the machine are “riddled with complications” (Thomas W, 2005). These sometimes lead to injustices which cannot be reconciled in hindsight. Nevertheless, it is a process that has its place at the “heart” of the “triparte” (Dicey, A, 1915) constitutional system in the UK, a subjective system of principles which arguably intends to achieve the more objective desires of the Parliamentary legislator in practice. But that is what the doctrine seems to be, practical principles made by judges to “fill in the gaps” (Eskridge, 1994) left by parliament.
This leads to the further question in this discussion as to how justified this “gap filling” (Eskridge) system of mere practical principles is to sit at the “heart” of the English Legal System. Dworkin (1994) contends that the judiciary do not really have discretion when they make case law, something this paper highlighted as a key strength of the doctrine of precedent. Dworkin concurs with Eskridge however that this “gap filling” system is an “endless web of principles” (Dworkin) within which the right answer to every possible legal problem can be found or, one could argue, have those solutions developed or refined. Dworkin’s reasoning can reinforce that despite legal rules could become exhausted by not being applicable to every new case, the legal principles of precedents never do. Therefore, precedent rightfully sits at the “heart” of the Legal System as its “regulatory matrix” (Jeremy Waldron 2012); one which rarely requires judicial discretion or change.
On the other hand, those such as Lord Denning were key attackers towards the status of “stare decisis”. He advocated that if a HOL decision had been made “per incuriam”, meaning a court had failed to take into account all relevant statute and case authorities which effected the decision in some way, then the precedent created does not have to be followed. Denning tested this in the case of Broome v Cassell [1971] by persuading the other COA judges to reach a decision contrary to the precedent set by an earlier HOL decision in Rookes v Barnard [1964]. He pointed out that Rookes had been decided “per incuriam” because it failed to consider even earlier HOL authorities. Broome then went to the HOL where Lord Hailsham rebutted Denning’s theory, insisting instead that he had just “looked for an excuse” to not adhere to “stare decisis”.
What arguably outweighs this and demonstrates that “stare decisis” sits at the “heart” of English Law for good reason is the free market idea behind the doctrines ability to adapt to social change. Lord Scarman stated in McLoughlin v O’Brian (1982) that the very function of the courts is to make judgements based on principle alone and if it amounts to socially unacceptable results then Parliament will bear the responsibility to change that through legislation. What “stare decisis” does then is force the legislator to respond to needs case law might identify but also overrule a potentially unjust precedent where applicable. In this sense, constitutional “balance” (Dicey, A, 1915) is maintained. The risks which lie with this central set of practices do not lie in the fact that precedents might develop too far; it is, as Lord Scarman identified in McLoughlin, that “the law could stand still” and fail to provide protection in a changing society. As Hayek (1982) furthers, there should be “as little legislation as possible, with case law becoming the main source of law”. Again, one can see that development of the law at its “heart”, its fundamental level, will be in line with the “market forces” (Hayek 1982) of society. If a precedent works, it stays, if not, it can be revised or abandoned.
Conclusions
This essay has discussed the principle of “stare decisis” in light of whether it is something that sits at the heart of the English Legal System. It has demonstrated its underpinning qualities of providing legal certainty and the ability for similar cases to be addressed swiftly by judges with confidence in the standard they apply. Despite concerns of the system being one that is too heavily based on the idiosyncrasies of a judicial elite and that precedents can sometimes leave seemingly unjust results, the fact remains that for all its faults it is all we have to adapt to the ever changing needs of the “heart” of society itself and the infinite number of situations legislation cannot hope to ever fully address. In an imperfect world, any system of law will arguably be subject to human error; it is what drives it to improve that is important and that requires a flexible mechanism to sit at its “heart” and that is ultimately where the doctrine of “stare decisis” lies and will continue to lie in the unique “web”(Dworkin) of society.
Bibliography
Books
Dicey A, (1915) “Introduction to the Study of the Law of the Constitution”, 8th Edition with new Introduction, Liberty Fund Inc.
Elliot, C and Quinn F, (2013) “English Legal System”, 13th Edition, Pearson Longman Publishing.
Manchester, C, (2011) “Exploring the law; the dynamics of precedent and statutory interpretation”, 4th edition, Sweet and Maxwell publishing.
Cross, R, (1991) “Precedent in English Law”, 4th edition, Oxford, OUP.
Macormick, N, (1978) “Legal Rules and legal reasoning”, Oxford, Clarendon.
Eskridge, W, (1994) “Dynamic statutory interpretation”, Cambridge, Harvard University Press.
Griffith, J, (1997) “The politics of the Judiciary”, 5th Edition, Harper Collins Publishers.
Von Hayek, F, (1982) “Law, Legislation and Liberty”, Volume 3, University of Chicago Press.
Dworkin, R, (1986) “Law’s Empire”, Belknap Press of Harvard University Press.
Hale, Sir M (1979) “The history of the common law of England”, Chicago, University of Chicago Press.
Kairys, D (1998) “The Politics of Law: A progressive Critique”, New York: Basic Books.
Articles
Fernandez P, (2012) ‘Stare Decisis: Rhetoric and Substance, J Law Econ Organ’, 28 (2):313-336.
Lawson, C.M (1982) ‘The family affinities of common law and civil law legal systems’, 6 Hastings International Comparative Law Review 85.
Thomas, W (2005) ‘Originalism, Stare Decisis and the Promotion of Judicial Restraint’; Merrill, 22 Const. Comment. 271.
Waldron, J (2012) ‘Stare Decisis and the Rule of Law: A layered Approach’, Michigan Law Review Association Michigan Law Review.
Cases
Ann v Merton London Borough Council (1978) AC 728
Broome v Cassell [1971] 2 QB 354
Davis v Johnson (1979) AC 264
McLoughlin v O’Brian (1982) [1983] 1 AC 410
Midland Silicones Scrutton (1961) UKHL 4
Murphy v Brentwood DC (1990) 3 WLR 414
Practice Statement HL Judicial Precedent [1966] 1 WLR 1234
Rookes v Barnard [1964] AC 1129
Sutherland Shire Council v Heyman (1985) 60 ALR
Statutes
The Sexual Offences Act 1976
