The Doctrine Of The Precedent Law Essay
The Doctrine of Precedent is following past decisions of the court. In England, the common law has been based on earlier cases being the source of law. This principle is known as the stare decisis and it distinguishes the common law from civil law systems. Under stare decisis, once a court has answered a question, the same question in subsequent cases must reflect the same response from an equal or lower court. The English Legal System is based of three sections:
The problem with subsequently reviewing the ratio decidendi is that the legal abstracts taken from concrete facts of the original case are not specified. They can be at the start, middle, end or sporadically spread throughout the speech. There are also points of the original precedent ignored or not referred to, this is known as the obiter dicta, these may be interesting comments, opinions or observations made by the judge to highlight certain issues that are not necessarily part of their reasons for deciding a case the way they do. For example, a comment may be made at the end of a judgement where it is stated that more changes to the law are needed to be made by Parliament.
The doctrine of binding precedent was established to limit the amount of judicial discretion. The Judge when initially hearing the case has one of four choices to make:
To Follow - If the facts are similar, then the Judge can apply the law in the same way to reach his decision.
To Distinguish - Where there are significant differences from an earlier case, the earlier judgement does not have to be observed.
To Overrule - This can be enforced by the Judge if the earlier decision was made in a lower court (with reference to hierarchy above)
To Reverse - This is a change to the original decision decreed by a lower court if the Judge thinks the lower court has made an error in interpreting the law.
There are advantages and disadvantages of case laws, these are summarised below;
Consistency - This is where like cases are decided on a like basis. This eliminates the possibilities that the judgement was made by the Judge not fully focussed on the case.
Certainty - Since there is a consistency in law, Lawyers can predict the outcome of a legal ruling where there has been a precedent set.
Efficiency - This relates to the length of time that a court case takes. Lawyer’s fees and expenses are extremely high as can be seen on well documented ‘costs awarded’. If the lawyers do not have to represent the arguments.
Flexibility - This refers to Judges being able to amend common law without waiting for Parliamentary Law changes.
Uncertainty - This arises as the number of similar cases is reported. The doctrine of stare decisis (The doctrine of Precedent) unfortunately allows Judges to pick out the parts of the case they choose from a selected case.
Fixity - This refers to an example where a wrong precedent has been set in a particular case leading to subsequent wrong conclusions and sentences being made.
Unconstitutionality - This is a very basic and controversial question. Do the Judges make or follow the law?
Innovation - If a law was not created by Parliament then it must have been created at some time by a Judge, therefore creating a precedent. In our fast moving, contemporary era, Judges have the choice of refusing to give a precedent or making a new law themselves on these contemporary issues.
Reform – Many statutes become outdated but are never repealed by Parliament.
The great value of the doctrine of stare decisis is that it provides certainty. On the other hand, there are dangers: first, that in order to avoid the conclusions of stare decisis courts are sometimes forced to find hair-splitting distinctions between cases; second, the doctrine limits flexibility and can make unassailable some principles which should have been abandoned long ago.
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