DOCTRINE OF PRECEDENT
The doctrine of Judicial Precedent is founded on the principle of ‘stare decisis’, meaning to
stand by the decision. Essentially it refers to the idea that once a court makes a decision, both
they and other courts beneath them are bound by that decision, except for in certain, limited
circumstances. This means that cases which are alike are treated in the same way, ensuring
justice in the system. The heyday of “the Doctrine of Precedent”, in both England and Wales,
was the century between 1865 and 1966 or thereabout
Explanation of the hierarchy of the courts
In order for this to work effectively, there must be a clear hierarchy of courts. At the lower end
of the hierarchy in the UK there are Magistrates, Crown and County courts. These courts do not
have the power to create or overrule precedent set in previous cases. At the upper end of the
hierarchy are the appellate courts: the High Court, the Court of Appeal and then at the very top,
the UK Supreme Court. These courts do have the power to make precedent and in some cases
depart from it. More on that later.
In order for courts to use precedent set in previous cases, there must be an accurate written
record of the decisions made in those cases. The records are found in Law Reports. These can
come in a variety of forms. The highest ranking form of Law Report are those found in
publications such as the All England Series, or the Weekly Law Reports, written by legal
academics. These are publications specially tailored to provide detailed legal information. Law
Reports can also be found, however, in the Law sections of broadsheet newspapers and in legal
journals, both online and in print form.
In order to use precedents set out in the Law Reports, judges must be able to identify the ‘ratio
decidendi’, or the reasons for the decisions made in past cases. It is the reasons, rather than
anything else, which ‘bind’ future cases, where the reasoning is similar enough to draw the same
or similar conclusion
Explanation of binding and persuasive precedent, ratio decidendi and obiter dicta, and law
reporting?
❑ An original precedent is where a judge must come to a decision without following a
previous decision, as the facts in the case have not come before a court before. For
example, in Donoghue v Stevenson (1932) a duty of care was established between
manufacturer and consumer for the first time.
❑ A binding precedent is where a future judge in a lower court must follow the decision of
a previous judge in a higher court, if the case facts are similar. However there are
exceptions, for example, if case facts are different and also the Supreme Court are not
strictly bound by their previous decisions.
❑ Persuasive precedents are not binding, but they may be statements a previous common
law judge has made which can influence a future judge in his own decision. For example,
in R v R (1991) the House of Lords overturned marital rape and a case decided by the
Scottish High Court of Justiciary was used as part of the reasoning.
❑ The ratio decidendi is the reason for a judge's decision in a case. The ratio is the
judge's ruling on a point of law, and not just a statement of the law.
❑ Obiter dictum are legal principles or remarks made by judges that do not affect the
outcome of the case.
Sometimes, however, there are cases which provide the reasoning upon which one can base
future decisions, but these decisions may not be ‘binding’. This could be, for example, because
they come from an inferior court, or from another country. In situations such as these, a court
may choose to follow a previous decision, even though they do not have to. This is called a
‘persuasive’ rather than a ‘binding’ precedent. Another example of a persuasive precedent is
where a court may decide to apply comments made by a judge in a previous case, even though
they did not form part of the ratio of that case. One such ‘obiter’ comment, or comment made ‘by
the way’, is found in the ratio for R v Gotts, where the judge decided to follow the ‘obiter’
comment made in the earlier murder case of R v Howe, stating that the defence of duress cannot
be a defence to attempted murder either.
In order to avoid following precedent, higher courts must meet certain criteria, so that judicial
precedent as a system remains intact. One way of departing from a previous decision is to have
the past decision declared as ‘mistaken’. If a decision was made mistakenly, or ‘per incuriam’,
then it would be unjust to continue to follow it.In the case of Young v Bristol Aeroplane, the
Court of Appeal decided that it need not be bound by its own previous decisions, if at least
one of the following criteria could be met:
1. The court is entitled and bound to decide which of two conflicting decisions of its
own it will follow
2. The court is bound to refuse to follow a decision on its own which, though not
expressly overruled, cannot, in its opinion, stand with a decision of the House of
Lords (now the UK Supreme Court)
3. The court is not bound to follow a decision of its own if it is satisfied that the
decision was given per incuriam
It should also be noted that the Court of Appeal Criminal Division and Court of Appeal Civil
Division do not bind each other.
Finally, the UK Supreme Court is able to depart from precedent using a different mechanism, the
Practice Statement 1966. This was a document created by Lord Gardiner LC, who argued that
although the UK Supreme Court (then the House of Lords) should aim to follow their own past
decisions, they should be able to depart from them, “when it appears right to do so”.
One significant use of the Practice Statement was in 1993 in the case of Pepper v Hart, where
the House of Lords decided to overrule the decision in Davis v Johnson. The decision allowed
from that point on, the use of Hansard as an aid to statutory interpretation.
Despite this, the Practice Statement is still used extremely sparingly and often not used at all,
even where it appears right to do so, so that consistency and stability are maintained within the
system of precedent.
A precedent may be avoided by the processes of overruling, distinguishing and
reversing.
What is distinguishing?
This is a method used by a judge to avoid following a past decision which he would otherwise
have to follow.
How can a judge distinguish a case?
The judge can find material facts of a case they find sufficiently different in order to draw
distinction between the present case and the previous precedent
What are the 2 cases which demonstrate the process of distinguishing?
Balfour v Balfour 1919
Merritt v Merritt 1971
What did both cases involve?
Balfour v Balfour 1919
Merritt v Merritt 1971
Both cases involved a wife making a claim against her husband for breach of contract
Why was the wife in Merritt v Merritt 1971 more successful than the wife in Balfour v Balfour
1919?
In Merritt v Merritt the agreement was binding and made after the couple were separated as so it
was found that spouses who have separated generally intend to be bound by their agreements,
there was also a written agreement
however
In Balfour v Balfour 1919, the couple were happily married and merely a social and domestic
agreements and so were not legally bound by the agreement
What is overruling?
This is where a court in a later case states that the legal rule decide in an earlier case is wrong.
When may overruling occur?
When a high court overrules a decision made in an earlier case by a lower court , e.g UKSC
overruling a decisions of the Court of Appeal
Apart from the UKSC overruling CoA, in what 2 instances can overruling also occur? (2)
-When the ECJ overrules a past decision it has made
-When the UKSC overrules a past decision of its own
What cases are examples of overruling? (2)
in Herrington v British Railway Board 1972
HOL overruled decision from
Addie v Dumbreck 1929
&
Pepper v Hart 1993
the HOL overruled
Davis v Johnson 1979
on the use of hansard
Can invoking the Practise Statement be overruling?yes
What is reversing ?This is where a court higher up in the hierarchy overturns the decision of a
lower court on appeal in the same case
When can be an instance where reversing is used ?For example, the Court of Appeal may
disagree with the legal ruling of the High Court an come to a different view of law, in this
situation they reverse the decision made by the High Court
Identification and discussion of the advantages of the doctrine of precedent
Certainty
If courts have to follow cases that have been set before, then it can be pretty easy to say how a
case would turn out even before court proceedings are filed. This means that a solicitor can give
clear, sound advice and suggest whether or not it would be useful or futile for a client to pursue a
case. This can save the public people money and time in court; they could also avoid
embarrassing or intimidating court cases. The House of Lords Practice Statement shows just how
important certainty is.
Flexibility
If the courts are able to depart from their own decisions and overrule other decisions based on
these principles discussed in the avoiding precedent section, then there is a certain flexibility
within the law. R v Brown and R v Wilson is an example of this as the courts could use methods
of avoiding precedent, so they had flexibility with their decisions.
Note: advantages can include certainty, consistency and facilitating development.
Disadvantages of the doctrine of precedent
Rigidity
The courts have some ways to move and avoid precedent but these are restricted. If a case comes up in court it
changed if it is a bad outcome, but cases and precedent can only change when a case comes to court. R v R 199
only change when the case came to court, but for a long time people clearly did not believe rape within marriag
acceptable. Government can only pass so many laws in its lifetime until policies and government change hands
put Acts of Parliament through quick enough to fix the problems that judges with powers to avoid precedent an
cases could.
Undemocratic
Judges are there to apply the law. They are not in the courts to decide what the law should be. Government and
Parliament are there as elected officials to forward our democracy. The courts read legislation and apply it into
they should not be there to change and deviate from the law if they do not want to or agree with it. Lord Esher
v City of London Court stated that it was the judge's responsibility to give the words their ordinary meaning, a
for Parliament to decide what the laws should be, and for judges to apply them
Unpredictable
If courts can avoid follow precedent, or depart from their decisions, then court cases could be unpredictable. A
is where we distinguish cases. If Brown and Wilson can be distinguished when they are very similar then it cou
problematic for a solicitor to predict the outcome to his clients. There was very little difference between these
there are other opportunities where a judge could distinguish a case. Also, different Supreme Court judges and
Appeal judges could depart from decisions and cause problems.
Disadvantages can include rigidity and law being slow to change with outdated precedents
remaining.
‘The system of precedent merely slows down the proper development of the law.’
Discuss this statement. [25] General Comment A very good answer to this question about the
system of precedent would look carefully at the definition of precedent and its origins and
development. All answers would be expected to consider the hierarchy of the courts and the role
different courts play in that hierarchy. So the fact that the House of Lords has the power to
ignore its own previous decisions should be contrasted with the Court of Appeal where such
power is far more limited. However the question expected candidates to consider the way that
precedent slows down the development of the law and very good answers would consider the
constraints that precedent places on the response the court can make to changes in contemporary
society. A very good answer would use case law extensively to illustrate points made in each
answer.
‘The English legal system’s reliance on the doctrine of precedent has resulted in the law
becoming rigid, outdated and slow to respond to change. The advantages of a system of
precedent are far outweighed by the disadvantages.’ To what extent do you agree?
The contemporary legal systems in the developed world typically take two forms: one being a
common law system, and the other a civil law system. While precedents used in the common law
system have binding effects (one of its most fundamental characteristics), the civil law system is
fundamentally based upon the use of codified statutes and precedents that are not formally
binding. (Peczenik, 1991) According to Slapper and Kelly (2016), the English legal system
makes use of a common law system.
In their explanation of the English legal system, Slapper and Kelly (2016: 137) describe the
doctrine of ‘binding precedent’ or ‘stare decisis’ which ‘lies at (its) heart’. The doctrine
maintains that the hierarchical structure of the English courts dictates that a decision which has
been made by a higher court will be binding on that of a lower ranking court. As with every
doctrine, the English doctrine of precedents holds both advantages and disadvantages.
Consistency, certainty and the predictability of law, as well as its efficiency, are suggested as the
major advantages of the doctrine of precedent (Bankowski et al.,1997). On the other hand, Lord
Denning (in Cho, 2008) criticized the binding effects of such precedents, suggesting that on
occasion they may result in the prevention of justice. The rigidity of the law in these instances,
the complexity of precedent, and a slowness to respond to technological, economic and social
changes, should also be discussed when considering the disadvantages associated with this
notion of precedent (Bankowski et al,1997).
This essay will begin by discussing the advantages pertaining to the doctrine, before moving
on to critically examine the doctrine and highlight its fundamental drawbacks. In brief, this
paper will discuss the view that the disadvantages of the doctrine far outweigh its advantages.
With regard to the arguments made in favour of the doctrine of precedents, it could be reasoned
that subsequent cases are decided on the basis of previous cases holding a similar nature (Slapper
and Kelly, 2016). Consequently, they are not dependent upon an individual judge’s own
whimsical conclusion pertaining to a case. Thus, formal justice is achieved by referring to a
precedent case, which is used to justify the judgement of successive cases. In addition, since the
outcome of cases, which have precedents, are predictable for the reasons outlined above,
individuals are usually inclined to follow a rule established during a case’s precedent (Ibid,
2016). These characteristics are underpinned by values such as equality before the law, security
under the law, and legal certainty or predictability, which are core characteristics informing the
doctrine of binding precedent (Bankowski et al.,1997). Lord Gardiner (in Major, 1985: 18)
emphasized the importance of precedent, stating: “It provides at least some degree of certainty
upon which individuals can rely in the conduct of their affairs.”
However, a criticism is that the binding force of precedent places constraints on the discretion
of the judiciary and occasionally leads to miscarriages of justice (Wild et al., 2013). Judges
are involved in forging shackles for the feet of their peers, and this can be illustrated by the
doctrine of common employment laid down by the House of Lords in Priestley v
Fowler (1837) (Ibid, 2013). In this case, the employer held not responsible for vicarious liability
when their employees were acting within the scope of their works, and this decision was
manipulated by many employers during subsequent years.
Consequently, it seriously limited the ability of judges to penalise employers for negatively
impacting upon the welfare of their employees until the doctrine’s abolition, which was the result
of the Law Reform (Personal Injuries) Act in 1948. (Ibid, 2013). Moreover, Lord Denning
(in Cho, 2008: 16) criticized the rigid application of precedent, stating: “all that I am against is
too rigid application, a rigidity which insists that a bad precedent must necessarily be
followed.” In addition, he stated that “an erroneous decision on a point of law can again be
perpetuated forever.” (Denning,1979: 299).
In addition, the system of doctrine relies on the claims in litigations. Thus, a bad judgement
may last many years if there is no relevant litigation. Such a situation led Professor Geldhart to
conclude that “the English judge is a slave to the past and a despot for the future.” (Rutherford,
Todd and Woodley,1987: 17). Also, a decision at the level of the Court of Appeal or the House
of Lords tends to maintain the status quo regardless of its relevance to the situation (Zander,
2015). Moreover, placing too much emphasis upon uniformity within the law is an obstacle
undermining a reasonable approach to local variability and socio-political attitudes (Bankowski
et al.,1997). Furthermore, formal equality before law can coexist with extreme and strongly
contested (‘substantive’) inequality of treatment such as fairly and equally applied laws that
ironically allow racial segregation of schools, exclusion of women from voting, or denial to
homosexuals of competence to adopt children (Ibid, 1997).
Some scholars and legal professionals supporting the doctrine of precedent argue that it permits
a certain degree of flexibility which allows it to cope with the rigidity inherent in the doctrine.
A judge in an inferior court can distinguish precedent, and a judge in a superior court can
overrule it (Rutherford, Todd and Woodley,1987). In addition, the House of Lords has not been
bound by its own precedents since 1966. However, although the House of Lords has not been
strictly bound by its own decisions, it is still bound in principle (Cho, 2008:16). In addition, Lord
Denning demanded that the Court of Appeal, which is just one rank below the House of Lords,
should also have the power to overrule its own previous judgements (Ibid, 2008).
Another argument that is used to support the doctrine of precedent would be claims alluding to
its efficiency in terms of the economy of judicial effort, i.e. the same point should not be
reargued too often. This allows for the avoidance of pointless litigation, and out-of-court
settlement (Bankowski et, al., 1997). The time and money of the courts, legal professionals and
their clients can be saved due to the fact similar cases have been argued in the courts already, so
solicitors and barristers can gauge how their particular case is likely to be determined based on
previous cases (Slapper and Kelly, 2017).
However, even though supporters of the doctrine claim that the outcome of a particular case is
predictable, there are often technical issues related to how a judge factors several legal
foundations into a particular judgement. It is hard to discover what the ‘ratio
decidendi’ (fundamental reasoning for the decision) is, which is binding, and what the ‘obiter
dicta’ (pronouncements said in passing by a judge) are, which are not directly relevant to the
issue before him, meaning subsequent judges are not obliged to follow them (Zander, 2015; Cho,
2008).
In addition, a judge may provide several reasons for their decision, which can, again, mean
the ‘ratio decidendi’ is obscure (Zander, 2015). Moreover, lawyers can have difficulty deciding
what the law is due to the abundance of precedents (Ibid, 2015). Furthermore, the segregation of
cases into these two sections is a hypothetical methodology, and judges do not usually segregate
their decisions into ‘ratio decidendi’ and ‘obiter dicta’. Consequently, ascertaining ‘ratio’ is not
the judge’s decision, but rather that of those who read the case such as barristers/solicitors and
citizens (Slapper and Kelly, 2016).
Some supporters of the doctrine can highlight the details of a case and its intrinsic practicality
due to the fact that precedents are based on actual circumstances (real-life cases) rather than
theoretical principles (Cho, 2008). There are approximately 400,000 judged cases, and a wealth
of detail contained therein (Rutherford, Todd and Woodley,1987). However, the vast bulk of
case decisions over centuries leads to immeasurable complexity (Cho 2008). Moreover, the
development of information and word-processing technology has added to the complexity of the
common law system (Gageler,2014). Furthermore, the legal foundations of cases are ascertained
by trial and error with conflicting precedents. As a result of this “snowballing” effect, a court can
be faced with numerous precedents which it has to decide to follow (Rutherford, Todd and
Woodley,1987).
Stability and certainty in law can hinder the adaptability of law to changing technological,
economic and social circumstances, as well as evolving social attitudes pertaining to good
order, fair law, gender, and generational/familial relationships, which are a lot more complex
than they were in the past. (Bankowski et al.,1997). In addition, new appreciations of basic rights
and of fundamental humanities can impact on how we view the wisdom of the past. Decisions
made in the past may have seemed fair and just at the time, but would be construed as nourishing
unfairness and injustice in contemporary times (Ibid, 1991).
Also, case law is retrospective due to its nature and slow to change to cope with changed
social perceptions. For example, before 1992, a man could not be found guilty of raping his wife
because a married woman was seen as consenting to sexual intercourse simply by virtue of being
married (Slapper and Kelly, 2016). Long lasting immunity for a husband’s rape could only be
abolished after the case of R v R (1992) due to ‘an 18th century judge’s decision that a husband
could not rape his wife.’ (Gilmore, 2011: 225).
Moreover, Jeremy Bentham (in Wild et al., 2013) also criticized the principle of the law as only
‘following the event.’ To make things worse, if a case with a new issue is tried in court, the court
must decide whether to refuse the decision of that case or to state what the law should be because
the court has no precedent to follow (Slapper and Kelly, 2016). Often such cases lead to
controversial disputes (Ibid, 2016). Furthermore, because of the very nature of case law, a single
decision creates uncertainty connected to the nature of case ‘ratio’, and there is no way of
resolving this uncertainty unless (and until) another case turns up raising the same issues
(Atiyah, 1995).
In conclusion, although the doctrine of precedent has its merits in the English legal system,
the disadvantages of the doctrine outweigh its advantages to a considerable degree. Most
fundamentally, the doctrine of precedent limits judicial discretion, occasionally leading to
instances of injustice or miscarriages in the law due to its tendency to follow formality, as shown
in Priestley v Fowler (1837). It also diminishes the ability not only of citizens, but also legal
professionals, to understand the reasoning of case law due to its complexity. Furthermore, it
should be reiterated that it is slow to response to changing circumstances based on its
characteristics as illustrated in R v R (1992). However, considering the numerous advantages the
doctrine of precedent, it would be unwise to totally dismiss them. As opposed to ignoring them,
they should be promoted with a view to implementing a legal system that creates a better, more
just society. It is my opinion that further research is required to minimize the doctrine’s
disadvantages and maximize its advantages.
Prepared by kerubo
