Judicial Precedent Free Essays

DOCTRINE OF PRECEDENT – LAW MAKING POTENTIAL More Judicial Precedent Resources: Judicial Precedent – Lecture Notes #1 THE JUDGES’ ROLE IN PRECEDENT The old view of the judges’ role was that they were merely ‘declaring’ the existing law (the ‘declaratory theory’). Lord Esher stated in  Willis v Baddeley  [1892] 2 QB 324: â€Å"There is †¦ no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable. The modern view is that judges do make law. We will write a custom essay sample on Judicial Precedent or any similar topic only for you Order Now Lord Radcliffe said (Not in Feather Beds, p215, 1968): â€Å"†¦ there was never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can he help it? † The reality is that judges are continually applying the existing rules to new fact situations and thus creating new laws. THE POSITION OF THE HOUSE OF LORDS In the mid-nineteenth century the House of Lords developed the practice that it would be bound by its own decisions. This was reaffirmed in  London Tramways Co v London County Council  [1898] AC 375. The House of Lords felt that decisions of the highest appeal court should be final in the public interest so that there would be certainty in the law and an end to litigation. However, this practice was criticised from the 1930s. Some of the Law Lords said that the rule did not produce the desired certainty in the law and it had become too rigid (eg, Lord Wright, Lord Denning and Lord Reid). Nevertheless, the practice was not changed until 1966 by Lord Gardiner LC. The practice statement was accompanied by a press release, which emphasised the importance of and the reasons for the change in practice: ? It would enable the House of Lords to adapt English law to meet changing social conditions. ? It would enable the House to pay more attention to decisions of superior courts in the Commonwealth. ? The change would bring the House into line with the practice of superior courts in many other countries. In the USA, for example, the US Supreme Court and state supreme courts are not bound by their own previous decisions. A. Paterson’s urvey of nineteen Law Lords active between 1967 and 1973 found that at least twelve thought that the Law Lords had a duty to develop the common law in response to changing social conditions (A. Paterson,  The Law Lords, 1982). EXAMPLES OF JUDICIAL ACTIVISM ; SOCIAL CHANGE 1. In  Herrington v British Railways Board  [1972] AC 877, the House of Lords overruled (or at least, modified)  Addie v Dumbreck  [19 29] AC 358. In  Addie, the House of Lords had held that an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly. InHerrington, their Lordships held that a different approach was appropriate in the changed social and physical conditions since 1929. They propounded the test of ‘common humanity’ which involves an investigation of whether the occupier has done all that a humane person would have done to protect the safety of the trespasser. 2. In  Miliangos v George Frank (Textiles) Ltd  [1976] AC 443, the House of Lords overruled  Re United Railways  [1961] AC 1007. In  Re United Railways, it had been held that damages in an English civil case could only be awarded in sterling. In  Miliangos, the House of Lords held that damages can be awarded in the currency of any foreign country specified in the contract. A new rule was needed because of changes in foreign exchange conditions, and especially the instability of sterling, since 1961. 3. In  R v Howe  [1987] 2 WLR 568, the House of Lords overruled  DPP for N. Ireland v Lynch  [1975] AC 653, and decided that the defence of duress is not available to a person charged with murder, whether as a principal or as a secondary party. In  Lynch, the House of Lords had held that duress was available as a defence to a person who had participated in a murder as an aider and abettor. In  Howe, their Lordships desired to restore this part of the criminal law to what it was generally understood to be prior to  Lynch, even though to do so would produce the illogical result that, whilst duress is a complete defence to all crimes less serious than murder, it is not even a partial defence to a charge of murder itself. How to cite Judicial Precedent, Papers Judicial Precedent Free Essays Judicial precedent: A judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for the legal principle embodied in its decision. The common law has developed by broadening down from precedent to precedent. A judicial precedent is a decision of the court used as a source for future decision making. We will write a custom essay sample on Judicial Precedent or any similar topic only for you Order Now This is known as stare decisis (to stand upon decisions) and by which precedents are authoritative and binding and must be followed. In giving judgment in a case, the judge will set out the facts of the case, state the law applicable to the facts and then provide his or her decision. It is only the ratio decidendi (the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent. Any observation made by the judge on a legal question suggested by the case before him or her but not arising in such a manner as requiring a decision is known as obiter dictum (a saying by the way). There may several reasons for a decision provided by the judge in any given judgment and one must not assume that a reason can be regarded as ‘obiter’ because some other ‘ratio’ has been provided. Thus, it is not always easy to distinguish ratio decidendi from obiter dictum when evaluating the effects of a particular decision. A single decision of a superior court is absolutely binding on subsequent inferior courts. However, certain of the superior courts regard themselves as bound by their own decisions whilst others do not: 1. Decisions of the House of Lords bind all other courts but the House does not regard itself as strictly bound by its previous decisions, for example, in Murphy v Brentwood District Council (1990) the House elected to overrule its earlier decision in Anns v London Borough of Merton (1978) on the issue of a local authority’s liability in negligence to future purchasers of property. 2. The Court of Appeal, Civil Division, holds itself bound by its previous decisions: Young v Bristol Aeroplane Co Ltd (1944) but in that case also identified three exceptional cases where it would disregard its own previous decision. These are (i) where two Court of Appeal decisions conflict; (ii) if the decision although not expressly overruled conflicts with a later decision of the House of Lords; and (iii) if the earlier decision was given per incuriam (through want of care) however it cannot ignore a decision of the House of Lords on the same basis. . Divisional courts of the High Court have adopted the rule laid down in Young’s case although judges sitting at first instance are not bound to follow the decisions of other High Court judges although they tend to do so for the sake of certainty Judicial precedent is an important source of English law as an original precedent is one which creates and applies a new rule. However, the later decisions, especially of the higher cour ts, can have a number of effects upon precedents.. In particular, they may be: †¢Reversed: where on appeal in the same case the decision is reversed, the initial decision will cease to have any effect †¢Overruled: where in a later case a higher court decides that the first case was wrongly decided †¢A refusal to follow: this arises where a court, not bound by the decision, cannot overrule it but does not wish to follow it so it simply refuses to follow the earlier decision †¢Distinguished: where an earlier case is rejected as authority, either because the material facts differ or because the statement of law in the previous case is too narrow to be properly applied to the new set of facts †¢Explained: a judge may seek to interpret an earlier decision before applying it or distinguishing it, thus the effect of the earlier case is varied in the circumstances of the present ca How to cite Judicial Precedent, Papers