Discuss whether the Doctrine of Judicial Precedent allows Judges flexibility in developing the law
Discuss whether the Doctrine of Judicial Precedent allows Judges flexibility in developing the law
Since every court is bound to any decision made by a court above it in the hierarchy, and in general, appellate courts are bound by their own previous decisions, the system is very rigid. However there are ways to get around this rigid system of Judicial Precedent.
The highest court that affects the English Legal System is the European Court of Justice. This court can overrule its own pas decisions if it feels necessary. This is a very flexible approach to past precedents, which is a contrast to the more rigid approach in our national courts.
The most senior national court is the House Of Lords, therefor it’s decisions bind all other courts in England. From 1898-1966 the House Of lords was completely bound by it’s past decisions, in 1966 the Lord Chancellor issued the Practice Statement which completely changed the way law works today. If a Judge sitting in the House Of Lords believes that an earlier case was wrongly decided, the Judge may refuse to follow the earlier case ration when, “it appears right to do so”. An example of this is the case of Herrington V British Railways Board (1972), which involved the law on the duty of care, owed to a child trespasser. The earlier case of Addie V Dumbreck (1929) had decided that an occupier of land would only owe a duty of care to injuries to a child trespasser, if those injuries had been caused deliberately or recklessly. In Herrington the Lords held that social and physical conditions has changed since 1929 and the law should also change. However, as there must be certainty in the law Judges are reluctant to use the Practice statement (8 times in 1999), but it does allow Judges flexibility in the development of the law.
