Describe how the system of the judicial precedent operates - Discuss the advantages and disadvantages of this system.
Law Coursework
Describe how the system of the judicial precedent operates.
Discuss the advantages and disadvantages of this system.
Judge made law has been around for hundreds of years. It offers certainty, flexibility and precision, but case law is not always fair in each circumstance. It is based on three main Latin phrases; stare decisis, which means ‘stand by the decision’, obiter dicta, which means ‘other things said’ and ratio decidendi, which means ‘the reason for deciding’. Judicial precedent comes from decisions made by judges which create laws for later judges to follow. Depending in which court a judge is operating in, they can be bound by that decision and must follow it, this is also known as case law. Precedent means once a decision has been made in one case on point of law, that decision must be kept in future cases. Although precedent has been around for hundreds of years it was only established in the late nineteenth century.
At the end of a case a judge will make a speech explaining his decision, known as a judgement. In the judgement, the judge will give a summary of the facts of the particular case and he would explain the principle of law he used to come to his decision. The judge may also sometimes discuss what the law would have been if the facts of the case had been different, these are known as hypothetical situations. The most important part of each judgement is the principle of law the judge used to come to his decision, this is known as the ratio decidendi, this is a Latin phrase meaning ‘the reason for deciding’. This is the part of the judgement that creates the precedent for future cases, the rest of the judgement is known as obiter dicta, this is another Latin phrase meaning ‘other things said’. This obiter does not create any binding law, but future judges can refer to it if the so choose. Precedent is also based on another Latin phrase; stare decisis, meaning ‘stand by the decision’. Basically meaning that once a decision has been made on a point of law, that same decision must be used in future cases, when the facts of two cases are similar enough.
Judicial precedent works using a hierarchy of courts. The higher the court, the more binding the precedent. The courts at the top of the hierarchy bind the courts below them, some courts are also bound by their own previous decisions. At the top of the hierarchy is the European Court of Justice. It binds all English courts but does not bind itself with its own past decisions. The House of Lords is the highest court in England. At the end of the nineteenth century, in a case called London Street Tramways Co. Ltd v. London County Council (1989), the House of Lords decided that it would always follows its previous decisions. This was because at the time judges in the House of Lords felt that certainty in the law was very important. "Certainty of the law was more important than individual hardship". However, judges in the House of Lords were given flexibility in the law when in 1966 the Lord Chancellor issued the Practice Statement, which said that Judges could refuse to follow a previous decision when “it appears right to do so”. This gave the House of Lords flexibility. The Practice Statement was used in Herrington v. British Railways Board (1972), to change the law concerning the duty of care owed by the owner of land to child trespassers. The Law Lords decided that because of changed social and physical conditions, the owner of the land had to take some care to protect children trespassing from coming to harm. Whereas before this case, the owner of the land would not be liable for anything that happened to the trespassers unless he himself (she) had caused the injuries deliberately or recklessly. The House of Lords feels that it is even more important that there is certainty in criminal law, mainly because a persons freedom is at stake. However, the Practise Statement has been used in a criminal case to overrule a previous decision. The first case in which this occurred in was that of R. v. Shivpuri (1986), this involved the law of attempting to commit a crime. The Court of Appeal is the next court down in the hierarchy of courts. This is split into two divisions, civil and criminal. The civil division is bound not only by the European court of Justice and the House of Lords but also by itself. This was decided by the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd. (1944), where it was held that it would be bound by its previous decisions with three exceptions. These three exceptions are; if two previous decisions of the court contradict each other. In this circumstance the court could choose which to follow and which to reject. If a decision used in the House of Lords disagrees with a decision made in the Court of Appeal then the Court of Appeal must reject its own past decision and follow that of the House of Lords. Finally, where a decision has been made per incuriam, meaning when a decision has been made carelessly, for example, if there was already an Act of Parliament which affected the case. These three exceptions do not allow for any real flexibility to the Court of Appeal. In the 1970s, Lord Denning (who was then head of the Civil Division of the Court of Appeal) felt that this court should have the same amount of flexibility as the House of Lords. However, this attempt to win more freedom was ended when the House of Lords, in the case Davis v. Johnson (1978) held that the decision made in Young v. Bristol Aeroplane Co. Ltd. Was still the law. Decisions made in the civil division are binding on all lower courts but not the criminal division of the Court of Appeal. The criminal division is different to the civil as it does not always follow its own precedent. Decisions made by the criminal division bind all lower criminal courts.
