Judicial precedent, also known as the doctrine of stare decisis, is a fundamental source of law within the common law legal system of England and Wales. It dictates that courts are bound to follow the legal principles established in previous decisions made by courts of a higher or equal level. This system ensures that the law is applied consistently and provides a degree of predictability for citizens and legal professionals. This essay will discuss the operation of judicial precedent, including the mechanisms that provide it with a degree of flexibility, before evaluating its main advantages and disadvantages as a source of law.
The Operation of Judicial Precedent
The effective operation of judicial precedent relies on two main factors: a clear court hierarchy and a system of law reporting. The hierarchy of the courts determines which decisions are binding. Decisions of the Supreme Court are binding on all lower courts in the English legal system. The Court of Appeal is bound by Supreme Court decisions and generally by its own past decisions, and its rulings are binding on all lower courts. The High Court is bound by the courts above it and binds the courts below it, such as the County Court and Magistrates' Courts.
For a precedent to be binding, it must form part of the ratio decidendi of the earlier judgment. The ratio decidendi is the legal reason or principle upon which the court’s decision was based. This is distinct from obiter dicta, which are other things said ‘by the way’ in a judgment. While obiter dicta are not binding, they can be a form of persuasive authority that judges in later cases may choose to follow. The development of comprehensive law reporting has been essential to this process, allowing judges and lawyers to identify the ratio decidendi from a vast body of case law.
Flexibility within the Doctrine
Although the doctrine of precedent appears rigid, there are several mechanisms that provide judges with a degree of flexibility and allow the common law to evolve. The most significant of these is the power of the Supreme Court to depart from its own previous decisions. This power was established by the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, which allows the court to change the law when it 'appears right to do so', for instance, to reflect changing social conditions.
Furthermore, all judges can avoid following a precedent through the tool of 'distinguishing'. This involves the judge finding that the material facts of the case before them are sufficiently different from the facts of the precedent case, meaning the earlier legal principle does not apply. Additionally, a higher court can 'overrule' a principle from a previous case decided in a lower court, declaring it to be incorrect law. This is different from 'reversing', where a higher court in the same case overturns the decision of the lower court on appeal. These tools ensure that the law does not become completely static.
Discussion: Advantages and Disadvantages
The primary advantage of judicial precedent is that it promotes certainty and predictability in the law. Because judges follow past decisions, lawyers can advise their clients on the likely outcome of a case with a degree of confidence. This allows individuals and businesses to plan their affairs knowing what the legal consequences of their actions will be. It also promotes fairness and consistency, as the principle of treating like cases alike is a cornerstone of justice.
However, the doctrine also has notable disadvantages. Its inherent rigidity can mean that bad or outdated decisions made by higher courts can remain in force for a long time, particularly if a suitable case does not reach a court with the power to overrule it. Another criticism is the sheer volume and complexity of case law, which can make it difficult and time-consuming to identify the relevant ratio decidendi. Finally, the system can be criticised for its retrospective effect. When a court overrules a previous decision and effectively creates new law, that new law is applied to the events of the case at hand, which occurred before the law was changed. This was seen in R v R (Marital Exemption) [1992] 1 AC 599, where the House of Lords abolished the centuries-old rule that a husband could not be criminally liable for raping his wife. This decision was seen as just, but it retrospectively criminalised conduct that was not considered a crime at the time it was committed.
Conclusion
In conclusion, judicial precedent is a vital and defining source of law in England and Wales. Its operation, based on the court hierarchy and the distinction between ratio decidendi and obiter dicta, is designed to provide legal certainty, consistency, and fairness. While the system is often criticised for its potential rigidity and the retrospective nature of judicial law-making, established mechanisms such as distinguishing and the use of the Practice Statement provide the necessary flexibility for the common law to adapt to modern society. Despite its weaknesses, the doctrine of precedent remains a cornerstone of the legal system, balancing the need for predictability with the capacity for development.
References
- Elliott, C. and Quinn, F. (2018) English Legal System. 19th edn. Pearson.
- Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
- R v R (Marital Exemption) [1992] 1 AC 599.
- Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Routledge.
