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A rule as to precedent (which any court lays down for itself) is not a rule of law at all. Discuss.

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Introduction

"A rule as to precedent (which any court lays down for itself) is not a rule of law at all. it is simply a practice or usage laid down by the court itself for its own guidance: and,as such, the successors of that court can alter that practice or amend it or set up other guide lines, just as the HOLS did in 1966" (Lord Denning MR, in Davis v Johnson). Discuss. The common law operates under the doctrine of judicial precedent, or stare decisis, which translates to mean 'stand by the decided'. The rationale for the doctrine is to produce certainty, which is an imperative if the primary objective of law fairness and justice were to be achieved. For one, everyone ought to be treated equally. For another, the individual citizen ought to be assured that the law is fixed at least in years to come, so as to be able to plan his life ahead. The doctrine accordingly consists of two main "rules" of precedent for the courts. (They are not really rules as per se, but I'll come to that later). Firstly, courts decide cases not on their merits but by following previous decisions on cases with same or similar facts. Secondly, courts are generally bound to follow their own prior decisions and decisions of courts above them in the hierarchy. The rules of precedent as pertaining the hierarchy of courts are generally recognized as below: Courts of high court and below are bound by the courts of high court and above. ...read more.

Middle

Yet, as Lord Denning has rightly pointed out, these "rules" of precedent are not rules at all, but practices of precedent. First off, Parliament has never legislated on this matter. Secondly, looking at the dynamics of judicial precedent logically, the courts could never have decided as a matter of law issues regarding precedents. The Practice Statement of 1966 as issued by the HOL and the cases of Young v Bristol Aeroplance and davis v johnson, is one good illustration of this. In London Trampways v LCC, the HOLs had stated that they will be bound by their own decisions from then on. In 1966, the Lords repudiated that ruling by issuing a Practice Statement while they were in Parliament, but not in court, to the effect that they can depart from their previous decision when it appears right to do so. In Davis, Lord Denning pointed out logically that the fact that the Lords could have done that shows that what was stated in London Tramways is not a rule of law but merely a guideline set by the Lords for their successors to the House. In corollary, thus he argues, what was stated by the Court of Appeal in Young v Bristol Aeroplane (see above) was similarly merely a guideline or a practice which the Court of Appeal in Davis can depart from or amend. The HOL in Davis apparently admitted that rules of precedent are not rules but practice. ...read more.

Conclusion

There are various views on how the conflict can be reconciled. One view is that, the COA took a legitimate position because sitting in its criminal division accords it with more descrition than when it is sitting in its civil division. (as in R v Newsome). However, the plausibility of that argument falls for two reasons. R v Newsome is only applicable when firstly, the departure from a precedent is for the interest of the accused's liberty, and secondly when the departure is from the coa's own previous decision. Neither of these conditions were met, for the court's application of Privy council authority served to uphold the appellant's conviction for murder, whereas the HOL authority R v Smith might have resulted in these convictions being quashed. Lord Woolf had recognised in R v Simpson that the rules of judicial precedent must provide certainty but at the same time they 'should not be regarded as so rigid that they cannot develop in order to meet contemporary needs'. That seems exactly what Lord Denning had said in Davis v Johnson. The position is still not fixed. A probable conclusion is when the issue goes up to the HOLs again, they would take the same stance as in Davis v Johnson. Rebuke the Court of Appeal, yet follow its decision. It seems thus, there is still very much flexibility even in the rules of precedent as regards to the hierarchy of courts. But perhaps the flexibility cannot be wielded in a manner as outright as what Lord Denning did in Davis. ...read more.

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