The Doctrine Of Judicial Precedent - Essay Example

The Doctrine Of Judicial Precedent Scholars in the legal profession concur in defining legal precedent as sources of the law that involve past decisions by various juries developing the law for use by other judges in future when making decisions on related or similar cases (Law Commission, 2007, p. 21). The British judicial system applies precedence based on stare decisis. The application within the English system developed from Latin including its translations. Loosely, stare decisis means standing by decisions already made (YANG, 2012, p. 12). Stare decisis to offer certainty and fairness in law. Lord Neuberger (2010, p. 14) categorizes them into two: obiter dicta and ratio decidendi. A standard of law used by a judge to arrive at a particular judgment while concluding the case defines what ratio decidendi entails (GLOS, 1979, p. 93). The facts applied in the delivery of a particular decision must fall in the speech provided at the end of the case. On the surface, ratio decidendi refers to a rule implied or expressed by a judge as an important factor in arriving at his or her conclusion. On the other hand, obiter dictum constitutes issues said by the presiding judge (Swadling, 2008, p. 33). They do not form part of what another judge can follow in future. Among other things, an example of obiter dicta could be the decision of the judge if the facts turn out as different from the previous case. In this context, the old facts cannot bind the new judge while reaching his conclusion (Tamanaha, 2010). Sometimes cutting an exact difference between obiter dicta and ratio decidendi becomes difficult because they flow in a continuous manner. While making the judgment in the Broome v. Cassell case (RAISCH, & SHAFFER,1995, p. 66), Lord Hailsham of Marylebone put forth that, it is a necessity for every court in the lower tie to agree loyally with decisions made by courts above in the hierarchy. They include the Court of Appeal because it comes second in command (CARTER, & TRIMBLE, 1991, p. 19). In many circumstances, the principle of the precedent is simple. It is necessary for judges to make decisions in the same way former judges made them enhancing certainty with courts falling lower in the rank following trends set by their superior counterparts. Same cases must receive similar judgments as well as related cases. The doctrine of precedent aims at facilitating certainty and stability within the law (NIHON DAIGAKU, 1983, p. 63). Under this mission, the Law Commission, (2007, p. 67) documents that the law strives to advance justice to parties involved in the case. The desire to justify processes followed in making a reasonable judgment, the urge to avoid usurping the function of the legislature, as well as the desire to use one of the things raised by parties in the case to make decisions fall among the changes. Much difference in the binding authority based on persuasive aspects and features that bind judges strictly (Hale, 2012, p. 16). Conditions of the previous case that bind another case in the future include among others having a statement of law and delivered by a senior court with binding authority. Others are decisions being a component of ratio decidendi defined by legal minds as the basis on which the court reached the conclusion and must display similarities with the latter case with no significant differences. The obiter dictum is for notation merely and does not possess binding authority. Decisions by the senior most court bind all other courts within the British legal system. Until nineteen sixty-six, the exception extended to the court itself. In Britain, the House Lords occupies the position of the Supreme Court (Lord Kerr, 25). Decisions made by and in the court are applicable in law. In the US, the Supreme Court is the final decision-making office in the judiciary. The doctrine of precedent is an old practice started in the nineteenth century with reaffirmation occurring two years before the turn of the twentieth century in a case pitting London Tramways Company and London County Council (1898) (Hale, 2012, p. 53). The purpose behind this traditional practice was that judgments delivered by the most Supreme Court in Britain remained final to propagate certainty in the corridors of justice (Law Commission, 2007, p. 71). It would advance finality in litigation while at the same time bringing order within the system. The Judicial Precedent 1966 developed the same year through Practice Statement enabling the senior most court to avoid remaining tied to its earlier decisions (ESSEN, 1955, p. 117). In the new development, the House of Lord would henceforth take powers and authority to make decisions different from their former decisions where necessary. The decision mandates the House of Lords to modify the English making it dynamic in view of developments in the society and around the globe (Slapper, & Kelly, 2009, p. 69). In addition to many more issues, the court now continues in tandem with changing social conditions and abiding by better decisions made by courts within the Commonwealth. The decisions to make these changes were informed by the sense of bringing the court at the apex to the same level and terms with other superior courts in other members of the Commonwealth. These courts do not stick to the previously delivered decisions. The fact that an Act of Parliament can override decisions by the House of Lords is significant in these circumstances. As much as decisions made by and in the Privy Council do not bind, they carry a high degree of influence. The case of Tai Hing Ltd v. Liu Chong Hing Bank (1986) (Swadling, 2008, p. 126) in the biggest court shows that decisions in the Privy Council must adhere to what takes place at the top of the judiciary (CLARK, 1917, p. 116). The Court of Appeal comes immediately after the House of Lords in the hierarchy and follows decisions delivered its superior to the latter. Several cases continue to alter the practice in the court that falls second in the hierarchy sticking to its former decisions (Simon Whittaker, 2006, p. 37). Most of these cases relate closely to the process of interpreting cases by the defense of provocation provided in the Homicide Act of 1957 subsection three. The cases include R v. Luc Thiet Thuan (1992), Camplin (1978) v. R, as well as R. v. Campbell (1997) (NIHON DAIGAKU, 1983, 25) among much more. The Court of Appeal also receives authority from HRA to overrule its earlier decision delivered before the inception of HRA (ESSEN, 1955, p. 79). The Court of Appeal applied this authority in the Fitzpatrick v. Sterling House Association. The epitome of the decision-making in the judiciary allowed the HRA to extend the right of partners of the same sex to take over statutory tenancy by including them in the order of members of the deceased family in the Rent Act of 1977. In the Ghaidan v. Mendoxa (2002) (Slapper, & Kelly, 2009, p. 88) case, the Court of Appeal applied subsection three of an HRA Act to allow same sex partners join the list of people inheriting property left behind by the deceased (Damaška, 1986, p. 41). Appearing contradictory was when the Court of Appeal termed a decision by the House Lords null and void entailed the case of East Berkshire Community NHS Trust v. D. (2004). In such a situation, the Court of Appeal struck out a case the highest court in the land involving Bedfordshire County Council, v. X (Minor) (1994) following the introduction of the HRA (MORRIS, 1984, p. 114). The House of Lorna approved this stand in the London Borough of Lambeth, v. Kay (2005) (SCOLES, & HAY, 1992, p. 117). In a case involving two decisions that conflict, then the court takes the responsibility of taking sides. However, the court throws out a case involving per incurring decisions. The Court of Appeal also has the civil decision whose decisions bind other divisional courts within High Courts, inferior courts such as employment appeal tribunals, and high court judges in their individual capacities. Using the Bristol Aeroplane Co. Ltd-1944 KB 718 v. Young (EVANS, 2006, p. 93), these courts have an obligation of following decisions delivered by the House of Lords (VON MEHREN, NAFZIGER, & SYMEONIDES, 2002, p. 156). There is also the criminal division of the second court in the land where its decisions bind the divisional courts in high courts, inferior courts such as employment appeal tribunals, as well as high court judges in their individual delivery cases. As much as their decisions remain in line with those of the senior most court, the level of rigidity is low. The liberty of the appellant makes the adjustments allowed in the criminal division possible. The jury presiding over the Spencer, v. R. (1981) (McCluskey, 2011, p. 9) in the criminal division would not abide by earlier decisions. It is essential to remember that decisions made by High Courts and in the High Court bind all other inferior courts without exception. However, a decision by one High Court does not bind other Courts at the same level (VANCE, 1890, p. 21). The same divisions do not bind both criminal and civil divisions. Nonetheless, decisions in the divisional courts influence the decisions of judges sitting individually in several cases (COLLIER, 2001, p. 192). Another section involves the Crown Court that remains bound on the judgments delivered by juries sitting in both the House of Lords as well as the Court of Appeal (Elliot, & Quinn, 2012, p. 92). It is also worth applying judgments by individual judges presiding over cases in the Crown Court to make deliveries by High Court judges (WILSON, 1935, p. 26). Magistrate and county courts do not precedent authorities and remain bound by decisions in the superior courts. Each case in the courts must have obiter dictum that constitutes a statement made in the process of delivering judgment and the ratio decidendi, which entails the major factor resulting from the decision (HAYWARD, & MAYSS, 2006, p. 56). The corridors of justice also have other sources carrying persuasive authority and include books among them Bracton thirteenth century, Glanville twelfth century, Blackstone eighteenth century, as well as the Coke seventeenth century. Summarily, it is of consequence to note that common laws do not need their binding authority using a single act of parliament enactment (SHAW, 2003, p. 81). However, it requires a series of enactments. The essence is not on the quantity of constant changes, but on the process through which the same law develops starting from the ratio decidendi in several cases (BOGDAN, 1994, p. 65). Sometimes cutting an exact difference between obiter dicta and ratio decidendi becomes difficult because they flow in a continuous manner (BRILMAYER, 1995, p. 71)). The fact is that the law did not develop in a single law-making exercise. It is a product of many cases and the cases continue to improve. BibliographyTop of Form BOGDAN, M. (1994). Comparative law. Deventer, Netherlands, Kluwer. BRILMAYER, L. (1995). Conflict of laws. Boston, Little, Brown. CARTER, B. E., & TRIMBLE, P. R. (1991). International law. Boston, Little, Brown. CLARK, G. L. (1917). Conflict of laws. Chicago, Blackstone Institute. http://www.gale.com/ModernLaw/. COLLIER, J. G. (2001). Conflict of laws. Cambridge, U.K., Cambridge University Press. http://public.eblib.com/EBLPublic/PublicView.do?ptiID=153357. 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[New York], Oxford University Press. http://dx.doi.org/10.1093/OBO/9780199796953-0030. Read More