Question:
“I understand the importance of precedent, but precedent does not completely bind, for one very simple reason…. If we were guided only by precedent, manifestly nothing … would ever change. Things do change.”
Discuss.
Answer:
Precedents are court decisions made in the past by upper courts that are binding on lower courts. Precedent is important because the Common Law does not rely on Civil Codes, precedent therefore plays a vital role in guiding decision making in the judicial process. ‘Things’ in the context of its relation to the law, may be interpreted as values held by the public, or legal expectations in society, which are often reflected in the law. We are not only guided by precedent because there are various persuasive authorities, namely, the recent introduction of Practice Statement in the UK, obiter dicta, as well as foreign precedent – this essay examines how changes are made without being guided only by precedent.
The understanding of the importance of precedent, stare decisis may vary across different perspectives. However, it is generally understood and accepted by most scholars, judges and students in the common law system that higher courts’ decisions bind lower court. The importance of precedent is recognised as it ensures legal certainty and prevents law from being retrospective, which upholds the rule of law by holding everyone to the same standards. The practice of following precedent and publishing a detailed summary of concurring and dissenting views of judges explain the ratio decidendi also adds transparency to the functioning of the court. Further, the reason why the importance of precedent is generally understood is because as suggested earlier – it prevents retroactive law-making, particularly, to prevent the chances of the House of Lords frequently intervening in scenarios where they do not agree with the precedents. The understanding of the importance of precedent could also be explained by a general consensus of respect for parliamentary sovereignty. As judges are not elected democratically, they have often been criticised for being non-diverse and having come from similar privileged backgrounds. It is therefore necessary to have precedent as a guide for judicial decisions to be made, rather than solely allowing judges to apply their own interpretation of the law, which may include their unintended biases. Sir Philip Sales explains that ‘judges at all levels recognise that they have to explain their decisions in terms which will be acceptable to [lower court]’. [1] The importance of precedent is arguably understood by civil law countries as well. Although the decisions in civil law countries are not legally bound by precedent due to the fear of abuse of judicial power, previous courts’ decisions arguably play a role in influencing court decisions due to the nature of the way judges are elected and promoted in the court system. Therefore, it may be argued the importance of precedent is understood and respected even though it might not always be carried out in practice in countries that follow the civil law tradition.
The suggestion in the question that precedent not being completely binding is true, as there are multiple persuasive authorities that judges may employ that may deviate from precedent in order for changes to occur. This is shown by the introduction of the Practice Statement in 1966 allowing ‘the House of Lords [to]…in some circumstances, overrule its own decisions’.[2] By allowing the House of Lords to overrule its own decisions, this prevents mistakes made in precedent to be repeated in the future. This is supported by the conclusion that ‘their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice…and also unduly restrict the proper development of the law’.[3] Obiter dicta is another form of persuasive authority that allow changes to be made. This is demonstrated by Lord Hughes (Ivey v Genting [2017] UKSC 67), where he did not follow the precedent set by Ghosh and concluded ‘that the second leg of the test propounded in Ghosh[4] …does not correctly represent the law and that directions based upon it ought no longer to be given [to juries]’.[5] Although obiter dicta is not as powerful as precedent, given that it does not follow the ratio decidendi of the case, it provides alternative interpretations which could be an opinion held by the minority but applicable to other cases in the future to serve justice, therefore allowing changes to occur. Lastly, although criticisms have been made about the use of foreign precedent as a persuasive authority, namely its infringements on national sovereignty;[6] these sources could arguably be used as an indication for changes in the law. This is not to say that the views of judges can be directly compared and applied, as it is indisputable that social contexts and intentions of legal judgments across different countries are likely to differ. However, countries may advance in different pace and therefore referring to one another’s jurisdictions that have shared universal values, such as the protection of fundamental human rights might lead to positive changes.
To conclude, the importance of precedent is well understood by different stakeholders, and it is true that it does not completely bind. However, the evolvement in society’s laws and value does not solely depend on the precedent, it also derives from court overruling, obiter dicta and foreign judgement which should not be used as the primary legal source but could be useful while considering differing legal judgements.
Grade: 68
References:
[1] Sales P, The Common Law: Context and Method p. 4 [2] Duxbury N, The Nature And Authority Of Precedent (Cambridge University Press 2008) [3] Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. The Irish Supreme Court declared around the same time that it likewise had the capacity to depart from its precedents: see Att. Gen. v. Ryan’s Car Hire Ltd [1965] IR 642; T. Cedric Jones, ‘The Implications of the New Doctrine of Stare Decisis in the Irish Supreme Court’ (1967) 101 Irish Law Times [4] R v. Ghosh [1982] QB 1053. [5] Ivey v. Genting Casinos (UK) Ltd [2017] UKSC 67 at [74]. [6] ‘Transcripts: Day two fo the Roberts Confirmation Hearings’ Washington Post 13 September 2005. https://www.washingtonpost.com/wp-dyn/content/linkset/2005/09/14/LI2005091402149.html
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