The doctrine of judicial precedent is a cornerstone of the common law system in England and Wales. The principle, often referred to by the Latin maxim *stare decisis* (‘to stand by things decided’), requires that courts follow the decisions of higher courts, and usually their own past decisions. While some argue that this doctrine is too rigid, there are compelling reasons why it should be retained. This essay will explain why the doctrine of precedent should not be abolished, focusing on its role in providing legal certainty, consistency, equality, and stability within the legal system.
The Need for Legal Certainty
One of the most significant arguments for retaining the doctrine of precedent is the legal certainty it provides. Certainty is essential for a functioning legal system because it allows individuals and businesses to plan their affairs with a degree of confidence about the legal consequences of their actions (Slapper and Kelly, 2017). If judges were free to decide each case on its own merits without regard to previous decisions, the law would become unpredictable. Litigants would be unable to receive reliable advice from their lawyers on the likely outcome of a case, as the result could depend entirely on the individual judge hearing the matter. Precedent ensures that the law is, for the most part, knowable in advance. This predictability saves time and costs by discouraging litigation where the outcome is already clear, and it provides a secure basis for commercial and private life.
Ensuring Consistency and Equality
The doctrine of precedent is also fundamental to ensuring consistency and equality before the law. The idea that like cases should be treated alike is a basic principle of justice. Precedent institutionalises this principle by compelling judges to apply the same legal rules to cases with similar material facts. Without this doctrine, there would be a risk of arbitrary justice, where two identical cases could be decided differently based on nothing more than the personal views of the presiding judge. This would undermine public confidence in the legal system and violate the principle of equality. The hierarchical structure of the courts, where lower courts are bound by the decisions of higher ones, is the mechanism that enforces this consistency across the country (Elliott and Quinn, 2020). For example, the Court of Appeal is generally bound by its own previous decisions, a rule established in *Young v Bristol Aeroplane Co Ltd* [1944] KB 718, which promotes a consistent application of the law at a senior level.
Providing Stability in the Law
Finally, precedent provides stability. The law needs to be able to adapt to social change, but it also requires a firm foundation. The doctrine of precedent ensures that the law develops in an orderly, incremental fashion rather than through sudden and unpredictable changes. This stability is crucial. It provides a solid framework within which society can operate. The doctrine is not, however, completely inflexible. The House of Lords (now the Supreme Court) recognised the need for some flexibility when it issued the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, which allows it to depart from its own previous decisions when it appears right to do so. This shows that the system has a built-in mechanism for correcting past errors or adapting to new circumstances, while still maintaining stability as the general rule. Abolishing precedent would remove this stable foundation, creating a legal free-for-all where the law could change dramatically from one day to the next.
In conclusion, the doctrine of precedent is an indispensable part of the English legal system. It provides vital legal certainty, allowing people to order their lives and businesses according to established rules. It promotes consistency and equality by ensuring that similar cases are decided in a similar way, which is a fundamental requirement of justice. Furthermore, it gives the legal system stability, while still allowing for careful and considered evolution of the law. For these reasons, the arguments for abolishing the doctrine are unpersuasive, and it should remain a central feature of the common law.
References
- Elliott, C. and Quinn, F. (2020) English Legal System. 21st edn. Pearson.
- Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
- Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Routledge.
- Young v Bristol Aeroplane Co Ltd [1944] KB 718.
