The doctrine of judicial precedent explains the importance of case law within the judicial system. It refers to the lawyers’ term for the legal experience. People tend to do things repeatedly and therefore this is also how law tends to behave. If one case has come up with a point of law then it is only logical that a solution will be looked at in the future. The term experience always describes the situation (Walter 1998). What was done before should always be done again and this has to be the starting point in trying to come up with a solution to a particular problem.
There is a need to see what examples exist or similar problems that were tackled before. The precedent is a good guide and can easily be followed. The corollary is that people making decisions are always afraid of doing something, just incase it creates a precedent. MacCormick states that to understand a case law is the same as understanding how that particular decision by particular judges about particular parties to particular cases can be used in making of the general rule that can apply to the actions of all the people.
Judges need to follow past decisions that were made by other judges in their ruling in similar cases. It relies on the adage, ‘stare decisis et non quieta movere’, meaning stand by what has been decided and established’. Fairness and certainty in law is then guaranteed. Judicial precedent is always perceived as the device of the common law.
Though judicial precedent is generally referred to as ‘judge made law’, the judges simply pursue judicial precedent to avoid coming up with fresh laws. If judges were left to make law other than enforcing it then there would be no democracy. Judges have to protect democracy
Ratio decidendi
This refers to the legal reason that enables a judge to reach a finding in a case that is brought in the court. It is a binding within the lower courts and stands in disparity to obiter dicta. It involves a fundamental part in the establishment of precedents that bind lower courts in the hierarchy and serves to make an application more predictable. In turn, it reduces the likelihood of the litigation of some issues about the law in the future (Frank & Edna 2003)
Coming with reasons for judgment or an order is an important part of the administration of justice as well as the determination of the legal rights of the parties in litigation. To start with, the reasons that underly the decisions that have been reached allow the parties that are not satisfied to exercise their rights of appeal in case the decision is wrong in the exercise of discretion. To add to that, reasons allow parties as well as the public at large to be in a position to know the reason as to why one party and the other one lost.
A trial judge should not address all the arguments that are raised during the course of trial but make clear the legal principles that led to reaching of the final conclusion. This enables the final decision to be properly justified at law. Provision of reasons is crucial in ensuring that the rule of law has fully been applied in the litigation.
Stare decisis in practice refers to a situation whereby when a court makes a decision in a given case then any courts that are in equal or lower state to that particular court have to follow the previous decision when the case before them is similar to the earlier one. Therefore once the court has decided a given matter then other inferior courts are bound to follow that particular form of decision. However, the decision of a case can mean quite a number of different things. In its simplest form, the decision is that A won and B lost. A and B are subject to an appeal which is based on the decision. This is referred to as res judicata, which means, a subject that has received adjudication.
Obiter dicta
Obiter dicta refers to a Latin phrase that means “things said by the way“. They are not binding like the ratio but are regarded as persuasive especially for future decision. The meaning of dicta mainly depends on the level of seniority of the court together with the eminence of the judge handling the case.
Obiter dicta refer are the opinions on points of law which are not directly related to a question in a given case. They come into existence when a judge decides to give a little bit of indication of how he or she would be able to decide a similar case, though not identical, to a case under consideration. The statements are meant to provide a clarification about the legal principle that the judge proposes to apply in a given judgment. Obiter dicta therefore take the form of analogies, various points of contrast, some illustrations or simply the final conclusions that are based on hypothetical
situations. In one case the opinions is likely to be adopted as ratio decidendi in a given subsequent case. This takes place when the circumstance that is regarded hypothetical by a judge comes about in another case.
The House of the Lords
This is the highest court in the land. The decisions arrived at by the house of the Lords bind all lower courts. There has been a debate which has been going on whether some of the decisions arrived at by the house of the Lords should bind the future house of Lords. And for a century the Law Lords considered themselves bound. However this was changed by the judicial precedent in 1966. it was said that though the doctrine of being bound had quite a number of good points, too much devotion to precedent is likely to lead to injustice in various cases and also unduly prevent the proper development of the law.
The pronouncements of the House of Lords should be seen as a way of creating an air of certainty in different business dealings, in land law, criminal law among others. Changing the mind may bring about justice to a particular case, though at the cost of certainty. There are a few occasions in various cases that have seen this in action.
Example
British Railways Board vs. Herrington [1972] AC 877; [1972] 1 All ER 749
The lords faced quite a number of decisions in the nineteenth century and early twentieth century which they held which was only a limited duty of care in negligence which is owed to the children who managed to trespass to the property. The duty meant that the occupier should never act recklessly with regard to the children that were known to be there; public policy dictates that there was no single duty to keep out such kind of children or even to make the premises secure for them. From that moment, changes in perception of public policy as well as the development of the law of negligence had made alteration in the approach to the whole topic of responsibility for actions of negligence. Therefore their Lordship had a feeling that they had the ability to ignore some of the early decisions and impose on the British Railway a duty of taking care of the Railway line fences in good condition by repairing them (Walter 1998).
The court of appeal and the doctrine of precedent
Civil Division
The court of appeal is always likely to follow its own decisions made previously. There are only exceptions are three in number and the exceptions were recognized by Young v Bristol Aeroplane Company (1944). The case involved an appeal of a workman against the decision of a high court, barring him from claiming the damages even after he had accepted compensation under the workman’s act of 1925. The judges in the appeal, while deciding that they could not hold up the appeal emphasized the circumstance upon which the court of appeal could overturn one of its own previous decisions. These were;
- The decisions of the court of appeal that were made previously
- A decision that has not been expressly over-ruled is not able to stand with subsequent decisions of the Lords
- Where a decision has been made ‘per incuriam’.
Following the 1966 Practice Statement however, some of the court of appeal judges, particularly Lord Denning had a feeling that they too should have come up with a scope to over-rule their own forms of decisions.
How the Doctrine of Precedent works
The point of view of a judge is that his function is to declare the law; from the observer’s point of view in doing so, he may add something new or changed something. The judge may be reversed on appeal or the ratio of the judge may be overruled in a later case by a higher court. This indicates that inspection of precedent at the time when it is handed down may not be in position to show that the precedent reflects a good law (Wayne 1990).
The doctrine of precedent can be said to operate like the best evidence on a given issue. The rules are laid down on how the courts are to approach the proceedings. The decision made by the house Lords when other things are equal, is always better evidence compared to other courts of appeal. Other than being the best evidence of what the law is, the decision of the House of Lords also creates an irrebuttable presumption which is correct. There is also no difficulty as far as overruling is concerned. The doctrine of precedence again acts to prohibit a court from receiving as evidence about a decision that has been overruled.
The common view that precedents are evidence of the law and not the law itself is very much consistent with the flexibility of the inmate and the fluidity of the common law system. It also shows the exact practices of the courts of law. Marshalling by each side of proofs, the counsel come heavily armed with precedents or the interpretation of the opponent’s precedent. After hearing from reach side, the judge then decides between them. After the judge has finally spoken, the precedent can then emerge as a reflection of the law. Even then, only in partiality as well as qualified sense that at most the decision represents a reflection of the best evidence which is available currently as to what the law is all about.
Examples
Case X; A man driving a BMW runs over an old lady who was using zebra crossing lawfully. The man is held responsible in negligence.
Case 2; A woman driving a Ford Mondeo runs over and old man who was crossing the road. Should the woman be found liable?
The need for the exploration of the ramifications of the issues come about to enable presentation of formalized answers to the questions above. The matters will come out in the evidences provided by the parties involved. The judge will then be able to decide on the strength of the evidence depending on which version of the truth he or she belies is correct to the best of his understanding. He or she will then need to apply judicial precedent to the facts of the case. The judge will provide various reasoning techniques such as reasoning by induction, analogy, deduction or through the use of policy consideration to come up with a more valid judgment (Asper 1994).
Bibliography
Frank E & Edna, E 2003, How Arbitration Works, BNA Publishers. United Kingdom.
Asper, WK 1994, The Elementary Principles of Jurisprudence, I. Pitman, University of Michigan.
Wayne, AS 1990, The Foundations of Legal Liability: A Presentation of the Theory and Development of the Common Law, Edward Thompson Company, United Kingdom.
Walter, FD 1998, The Laws & Jurisprudence of America and England: A Series of Lectures in Yale University, The Little Brown Publishers,United Kingdom.