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:
This essay will argue that while in theory nothing would change if the courts were completely bound by precedent, this is not the case in practice. Precedent is not the only force that guides the development of the law. This argument will be made in three parts: part one will focus on the theory of precedent while part two will look at the practical application of precedent by the judiciary and will examine how this practice does not adversely affect the doctrine of precedent. An assumption is made that change is always a positive thing, and while this debate is mainly outside of the scope of this essay, it will be discussed in part three. For the purpose of the essay, ‘things’ shall simply relate to the common law.[i]
Theory:
In theory, the application of the doctrine of stare decisis[ii] prevents precedent, and indeed the common law, from changing. When the material facts of two cases are alike, it is difficult to argue that precedent shouldn’t be applied, even if the rule that will be applied to the current case seems archaic and unjust.[iii]
Practice:
In practice, judges have a myriad of tools at their disposal to develop the common law, such as distinguishing facts and overruling. Arguably, these tools mean that precedent is not completely binding. It should be noted that it is never the intention of the courts to provide absurd rulings – this would provide impractical outcomes for both the individual parties and further courts when the outcome is appealed.[iv] Therefore, it is of paramount importance that precedent mirrors current social policy to effectively develop the common law.
Distinguishing is used when it is argued that the precedent from a previous case cannot be applied because of a difference in material facts. Though it may appear that the court is discounting the previous precedent, distinguishing a case does not challenge the ratio of the original case. It merely observes these material differences and provides a result that is deemed fair in the present case.[v]
Some[vi] would describe the practice of overruling as retroactive law-making, which would clearly undermine precedent. However, according to the declaratory theory, overruling merely corrects the mistake made by previous courts.[1] If the courts were not able to overrule previous precedent that it viewed to deviate from current social norms, there would be a restriction on the ‘proper development of the common law’.[2][vii] Perhaps this is an example of where the judiciary takes a more normative approach: the courts examine what the law ought to be so that it produces fair outcomes, as opposed to rigidly following the letter of the law. Overruling provides justice in the moment, something that neither precedent nor the later enactment of statutes can provide.
A more recent development in the common law allows courts to use the persuasive authority of Supreme Court obiter dicta over the precedent set by a lower court.[3] This change is monumental in the understanding of the doctrine as it allows judges to use the persuasive authority of obiter dicta within their ratio, making positive change where the law ought to evolve.
The use of Supreme Court obiter dicta does not necessarily undermine the doctrine either, but it does mean that precedent is not completely binding. Stare decisis translates to ‘to stand by things decided’, so by using dicta as binding authority the courts are promoting consistency and predictability – the main aims of following precedent.[4] Supreme Court justices are highly experienced experts in the legal profession, and it is their guidance that courts should look to for clarification to allow the law to evolve in the correct way.
Furthermore, if parliament does not believe that the judiciary is developing the common law in the correct way, it can enact legislation that corrects the mistake and provides further guidance to the courts.[viii] Supremacy obtained from the democratic legitimacy of parliament affords it this power. Precedent is ancillary to parliamentary sovereignty, not the other way around. Acts of parliament therefore have the power to change the way that the law develops without wholly sabotaging the doctrine of precedent.
Maintaining Precedent: Is change always positive?
The overarching assumption made in the statement is that change is always a positive thing. It must be noted that the techniques of developing the common law explored in this essay are intended to provide justice[ix] in the present. Without some way to deviate from precedent, the law would be forever stagnant. The Supreme Court has made it clear however that the law cannot simply change because of a mere change of opinion; a subjective approach like this would potentially introduce further bias within the judiciary.[5] Judicial change must be born from a change in the generally accepted socio-legal climate or social policy.
To a certain extent, rigidity and predictability in the law is a positive thing.[x] It protects citizens from being punished for something that is contrary to what the current law allows or prohibits. Bentham criticises that judge ‘won’t tell a man beforehand what it is he should not do… they lie by till he has done something which they say he should not have done, and then they hang him for it’, describing this way of rulemaking as ‘dog-law’.[6] There is generally animosity against the courts when their judgements appear to constitute unfair retroactive punishment.[xi] Preventing this requires that precedent is followed to promote transparency in the law. Precedent is integral in the uniform application of the law, so the doctrine, though not legally entrenched, should be respected – change is perhaps not always welcome.
Conclusion:
In conclusion, though the practical application of precedent in courts occasionally differs from its theory, this is not to say that the doctrine is wholly undermined by the judicial system. There is not ‘one simple reason’ why precedent does not completely bind, and it is rather impossible to suggest that nothing could ever change within the common law due to the instruments that are afforded to a court challenged by previously set precedent.
Feedback:
Grade: 69 / 70
Feedback:
This was a truly excellent formative – really well done! My comments on the paper are quite harsh, precisely because so much of it was excellent and I was being picky. You had a clear and interesting argument which brought in an important normative element, great structure and you also write very well. It was a pleasure to read.
The big issue with the paper which would stop it getting the first class mark is you need to cite more primary sources (and probably more secondary literature too for a number of assertions) and draw them out as examples for the points you make. For instance, you make quite a few assertions, where it would be easy to bring in examples – the discussion on overruling and distinguishing, for instance, invited the opportunity to talk about cases where this has been done by the courts.
Really – very well done.
Please see also my specific comments on the paper.
References: [1] Allan Beever, 'The Declaratory Theory of Law' [2013] 33(3) Oxford Journal of Legal Studies <https://shibbolethsp.jstor.org/start?entityID=https%3A%2F%2Flse.ac.uk%2Fidp&dest=https://www.jstor.org/stable/24562785&site=jstor> accessed 9 November 2021 [2] House of Lords, Practice Statement [1966] 1 WLR 1234, [1966] All ER 77 (Lord Gardiner LC) [3] R v Barton [2020] EWCA Crim 575 (Burnett LCJ) [4] ‘stare decisis’ Legal Information Institute: Wex (Cornell Law School) < https://www.law.cornell.edu/wex/stare_decisis> accessed 7th Nov 2021 [5] Willers v Joyce [2016] UKSC 44 [6] Jeremy Bentham, Truth versus Ashurst (R Carlile 1823)
Marker Comments: [i] Fantastic introduction – really well done [ii] I would have one sentence on what this doctrine is (ie what does it require) [iii] This section could have been more extensive – and required citing some secondary literature (e.g. you could have cited Duxbury for some of these points) and maybe even some case law you were given that shows strict application of precedent [iv] This sentence is unnecessary – unless you can provide a citation for it (as in we know it is the case – but you need to cite assertions like this) [v] You need to cite cases as examples where distinguishing has been used (or at least have some citations for these assertions) [vi] Such as? [vii] Set out exactly what the practice statement says and how it gives exceptions to the doctrine [viii] This seems to be going slightly off the question asked – it’s a good point, but frame it directly as a response to the question. Ie the reasons for having a strict application of precedent can still occur even if it’s not binding (is what I think you are getting at). [ix] Noting ‘justice’ is subjective and a loaded term. I might say it’s rather aiming to achieve ‘fairness’ [x] Absolutely – this is the core of the rule of law [xi] Don’t make generalisations like this (unless you can cite it)
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