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Law System Of Precedent Has Latin Origins Law Essay

The English law system of precedent is based on the Latin maxim stare decisis et non quieta movere (which can be shortened to stare decisis) which when translated means ‘stand by what has been decided and do not unsettle the established’, because of the doctrine of precedent this supports the fairness and certainty of law. This can be understood further if we take a look at binding precedent, this lies at the heart of the English legal system as it means that with the hierarchal system of the English courts, a decision of the higher court will be binding on a court lower than it in the hierarchy.

This means that a judge before passing a judgement will check to see if any similar situations have arisen in the courts before, if the precedent was set by a court of equal or higher status than the court deciding the new case, the judge of the present case should follow the rule of law established ready. If the precedent was set by a court below the court deciding the new case then its decision is not binding on the higher courts but may be carefully considered.

The doctrine of precedent can only operate if the legal reasons for the past decisions are known, therefore at the end of the case there will be a judgement, this concludes with a speech made by the judge giving the decision and, more importantly, the reasons for that decision. In a judgement the judge will give a summary of the facts of the case and review the arguments of the advocates in the case, then explain the principles of law he is using to come to the decision. These principles are important part of the judgement and are known as the ratio decidendi which means the reason for deciding, and this is what creates the precedent for judges to follow in future cases. So it is very important to understand that with the operation of precedent it is not the literal facts of the case that are to be applied to future cases but more the principles behind the decision for choosing that outcome to a case. Sir Rupert Cross defined the ratio decidendi “any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion”.

The doctrine precedent also operates on other factors that may not be binding as such but can be used to argue for a certain decision to be made. Obiter dicta (‘other things said’) this is the remainder of the judgement (that are not ratio decidendi). This is important of the precedent mechanism because some judges speculate on what his decision would have been if the facts of the case had been different. This hypothetical situation is part of the obiter dicta and the legal reasoning put forward may be considered for future cases, even though obiter statement is not binding.

The basis of the operation precedent, however, judicial precedent can be looked at in 3 main ways or 3 main categories, Original, Binding and persuasive precedent. Each one helps explain the operation of precedent in a more in depth way.

Original precedent is when there is a case in law that has never been decided on before, when this happens whatever the judge decides will form the new precedent for the future cases to follow, since there are no past cases for the judge to base his decision, he is likely to at cases which are the closest in principle and he may decide to use similar ruling. E.g. Hunter and others v Canary Wharf ltd and London docklands Development Corporation (1995). This was a new case that did not have any previous principles of precedent for the judge to base his decision on. Another example is in Donaghue v Stephenson (1932) snail in a bottle case – negligence. As they were no past cases the judge had to arise to his judgement through reasoning of analogy.

Persuasive precedent is not binding on the court, but the judge may consider it and decide that it is a correct principle so he is persuaded to follow it. A famous case where persuasive precedent was followed is r v r (1991) where the House of Lords agreed and followed the decision of a lower ranking court that it is possible for a man to rape his wife.

Binding precedent is when precedent from an earlier case must be followed even if the judge in the later case does not agree with the legal principle, however, binding precedent is only created when the facts of the second case are sufficiently similar to the facts of the original case and that the decision was made by a court which is senior or in some cases equal to the court hearing the later case.

These basic rules as the ones mentioned above are essential if the doctrine of precedent is to operate at all. The other thing, which is essential, is that lower courts know all the legal reasoning behind decisions of the higher courts, they can only do this if such reasons are properly reported, all decisions from the higher court upwards are properly recorded and reported through the system of law reporting.

The doctrine of precedent can be binding on judges in some instances and not binding on other instances, however, it’s important to realize when judges must follow the doctrine of precedent when they must not or can disagree with it (in very rare cases).

Inferior courts are always bound by the decisions of courts that are superior, the House of Lords use to be bound by its own decisions until 1966; this was changed when Lord Chancellor issued a practise statement announcing a change to the rule in London Street Tramways v London County council. The first major use of the practise statement was in 1972 Herrington v British Railways Board, which involved the law on duty of care to a child trespasser, this overruled the previous decision Addie v Dumbrek (1929).

This shows that no longer is the House of Lords bound by previous decisions, however, all inferior courts must follow the doctrine precedent. Precedent thought can only be followed under circumstances.

Distinguishing, if judges decide that there is not a sufficient amount of similarity between the principles of 2 cases (original case and present case) then he is not bound to follow precedent. Example would be Balfour v Balfour (1919) and Merritt v Merritt (1990). Both cases involved a wife making a claim against her husband for breach of contract. In Balfour it was decided that the claim could not succeed because there was no intention to create legal relations, there was merely a domestic arrangement between husband wife so there was no contract. In Merritt the court distinguished the case from Balfour because although parties were husband and wife, the agreement was made parties were husband and wife, the agreement was made after they had separated. Further more. It was in writing, so it was a legally enforceable contract.

This is a method which can be used by a judge to avoid following a past decision which he would otherwise have to follow. It means that a judge finds facts that make the case he is deciding on sufficiently different for him to draw a distinction between the present case and previous precedent, however if the facts are the same and no difference can be made then the judge is bound to follow the precedent ( if set by a higher court).

Overruling is another way in which judges are not bound by precedent. this is where a court states that a decision made by previous courts (earlier decisions) is wrong. Overruling may occur when a higher court overrules a decision made by a lower court. In order to overrule precedent the court must be higher than the previous court that made the earlier decisions (hierarchy of courts) if not then the precedent stands and the judges are bound. An example would be Pepper v Hart (1993) where the house of lords over ruled the decision made by an earlier court in Davis v Johnson (1979).

This can also be an example of how judges are not bound by precedence, by using this method the judge does not have to follow the decisions of other courts.

Reversing this where a court higher up the hierarchy over turns the decision of a lower court in the case example when court of appeals reversers the decision of the High court.

Doctrine of precedent is an essential part of the English legal system and its operation has led to the growth of a large legal foundation for cases that are tried. It provides certainty in the law and judges have clear cases to follow. However with U.K. membership of the E.U. this means that European law is now sovereign and various elements of precedent may be changed to harmonise the various elements of law. The doctrine of precedent continues to grow as more and more cases come up with new principles being brought forward.


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