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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"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. Trial courts, magistrates cpurts, county courts and High Courts are not bound by their own decision. But the Divisional court of the high court is bound by its own decisions in the same way as the COA. In Young v Bristol Aeroplane Co ltd the coa set out the rule that it is bound by uts own decisions except when they conflict, in which they can choose which to follow, or the earlier decision has been overruled by the HOL, or it was reached per incuriam, that is a binding precedent was overlooked. The House of Lords, by the practice statement 1966, are bound by its own decisions, except when it appears right to depart from them. Further, decisions of the Privy Council do not bind English Courts, but only have persuasive authority (de Lasala v de Lasala)

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Reasonable concerns might arise as to the law becoming overtly rigid, and inept to adapt to circumstances. Like for example, society might change with time and what is good law a century ago might not be now. Further, there might be circumstances in where the law which a court is bound to apply does not in any sense produce a moral or just solution. Yet, while reasonable, that concern might just be superfluous. The reality is, the application of precedent is not a mechanical affair but a dynamic process which involves a great deal of interpretation, choice and style. ...

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