Part 2- Traditional Judicial Understanding of Precedent
2012/// Filed in: Common Law
This posting provides a concise overview of the traditional understanding of precedent in order to later assess the impact of the HRA 1998 [1] on the underlying features of this doctrine.
The English legal system follows the doctrine of judicial precedent. Judicial precedent holds that judges in lower courts are bound to follow decisions previously made in higher courts. This doctrine is based on the general principle of stare decisis (i.e., to stand by cases already decided). Consequently, when a legal proposition has been decided in one case, it has to be followed in certain courts. Precedents created by superior courts bind lower courts, that is, the ratio decidenti (i.e., the reason for deciding) or legal principle upon which a case is decided in light of material facts is a binding legal principle on other cases. For instance, the decisions of the House of Lords/Supreme Court bind all lower courts in the UK. The advantage of the doctrine of precedent is that it provides certainty and predictability. The disadvantage, however, is that stare decisis can result in a lack of flexibility and an inability of the common law to adapt to changing moral, socio- economic, and political realities resulting in a static body of law.
The certainty versus flexibility dilemma was addressed in the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 [2] where the House of Lords stated that while it considers itself normally bound by its own decisions, it may depart from a previous decision in certain rare circunstances. Their Lordships departure from the traditional understanding established in the London Tramways Co Ltd v London County Council [1898] AC 375 [3] where the House of Lords stated that it was strictly bound by its past decisions was based on the fact that “too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law” (i.e., the need for flexibility). At the same time, they also highlighted “the especial need for certainty as to the criminal law”, the danger of “disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into”, and that binding precedent “provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs” (i.e., the need for certainty). Consequently, the House of Lords (currently the Supreme Court of the UK [4]) binds all the lower courts and would only depart from its own decisions in rare cases. This helps achieve certainty in business dealings, criminal law, land law, and all other relevant areas of law that critically depend on predictability, while also enabling them to develop the common law.
The English legal system follows the doctrine of judicial precedent. Judicial precedent holds that judges in lower courts are bound to follow decisions previously made in higher courts. This doctrine is based on the general principle of stare decisis (i.e., to stand by cases already decided). Consequently, when a legal proposition has been decided in one case, it has to be followed in certain courts. Precedents created by superior courts bind lower courts, that is, the ratio decidenti (i.e., the reason for deciding) or legal principle upon which a case is decided in light of material facts is a binding legal principle on other cases. For instance, the decisions of the House of Lords/Supreme Court bind all lower courts in the UK. The advantage of the doctrine of precedent is that it provides certainty and predictability. The disadvantage, however, is that stare decisis can result in a lack of flexibility and an inability of the common law to adapt to changing moral, socio- economic, and political realities resulting in a static body of law.
The certainty versus flexibility dilemma was addressed in the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 [2] where the House of Lords stated that while it considers itself normally bound by its own decisions, it may depart from a previous decision in certain rare circunstances. Their Lordships departure from the traditional understanding established in the London Tramways Co Ltd v London County Council [1898] AC 375 [3] where the House of Lords stated that it was strictly bound by its past decisions was based on the fact that “too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law” (i.e., the need for flexibility). At the same time, they also highlighted “the especial need for certainty as to the criminal law”, the danger of “disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into”, and that binding precedent “provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs” (i.e., the need for certainty). Consequently, the House of Lords (currently the Supreme Court of the UK [4]) binds all the lower courts and would only depart from its own decisions in rare cases. This helps achieve certainty in business dealings, criminal law, land law, and all other relevant areas of law that critically depend on predictability, while also enabling them to develop the common law.