Stare Decisis:
Stare decisis is the act of following previously set precedent. It is highly valued in the legal practice, but often not in the rest of society.
Following precedent ensures that the courts generally rule in a uniform, predictable and just way. Citizens are more confident in the way that the court will rule on the case if they know it will follow a pattern. However, this can lead to the same mistake being repeatedly made in lower courts.
‘the common law as "a taught tradition of experience developed by reason and reason tested by experience"’.[1]
Reid LJ: ‘People want two inconsistent things; that the law shall be certain, and that it shall be just and shall move with the times’. [2] – it is a judges job to make sure that the courts provide fair justice and reasonable outcomes. Lord Reid also compares the common law to handcrafted goods and legislation to mass produced goods.
Developing the Common Law:
The ‘Common law, as an institution, owes its longevity to the fact that it is not a final codification of legal rules, but rather a set of procedures for continually adapting some broad principles to novel circumstances’. [3]
Legislation:
Statutes signal to the court where Parliament, and in turn the government, believe that the courts should not be developing the common law, but following the rules set by the legislature. Alternatively, it tells the courts how to develop the common law in line with legislation.
Custom:
The common law is an immemorial custom which is assumed to have a lawful origin. No one alive can remember a time when the common law wasn’t respected in the same way statutes are, so it is treated as if it were of the same authority.
Declaratory theorists argue that courts do not create law, but enforce this custom through the way that they respect precedent.
Distinguishing:
No case can be entirely identical to another, so a ‘like case’ is one which is significantly more alike than it is individual. The facts cannot be materially different from the precedent case for precedent to be applied.
Distinguishing precedent is when it is argued that the precedent from a previous case cannot apply because the material facts are different. This doesn’t challenge the ratio of the original ruling but separates it from the current one so that its outcome cannot apply.
Overruling:
Higher courts can overrule the precedent of a lower court.
For a long time, the House of Lords did not overrule its own precedent; only legislation could change the legal authority. [4] In 1966 thorough the Practice Statement, the House of Lords changed this convention as it restricts ‘the proper development of the law’. [5] The House of Lords, and now the Supreme Court, overrules precedent (even when set by itself) when a legal error would be perpetually made.
Overruling is only used where necessary to uphold justice, not just because opinion has changed.
‘the Practice Statement should not be invoked to depart from an apex court precedent merely because judges on that court now take a different view of the law. The court must be satisfied that the precedent gets the law wrong and needs correcting’. [6]
Retroactive Law-making vs Fixing a Mistake:
It could be argued that overruling previous case law constitutes retroactive law-making, as the decision is based on past facts. This would be perhaps unfair as the precedent had not already been set when a defendant undertook their actions, so they did not know they were breaking the law.
Some other jurisdictions state that the new precedent will only apply to future rulings to combat this and make the precedent prospective rather than retrospective. However, this will not give the benefit to the victim in the current case.
The declaratory theory is that overruling is not changing the law but correcting a legal mistake. The courts are putting the law back on track with what it should be, so it is not development. This is the approach taken by the English courts.
Persuasive Authority:
Legislative history, foreign judgements, dissenting opinions, concurring opinions, articles and journals are all persuasive authority. While these sources are authoritative, they are not bound in law.
Ratio Decidendi:
The ratio is the legal reasoning behind the outcome of the case. It is binding to future courts.
Minority Opinions (Dissents):
A minority opinion on an appellate case is not legally binding as it is not the overall outcome of the court. It is only the opinions of the judges who disagree with the majority.
Obiter Dicta:
Obiter dicta are opinions and observations that a judge makes during the case. It is not needed for the judgement, so it is not binding precedent.
Obiter is usually interwound within the overall judgement, so it is up to a future court to distinguish between the ratio and the obiter. Some judges apply more weight to the obiter than others, which can start a chain of incorrect rulings in lower courts.
In Ivey v Genting, Lord Hughes JSC wrote a section of his work as obiter dicta, stating that the law ought to be changed. A High Court ruling still followed the precedent from a previous Court of Appeal case, as it was argued that the precedent from the Court of Appeal case was more authoritative than the obiter dicta from the SC. [7] In a different case, a High Court judge applied the obiter dicta of Lord Hughes JSC, stating that it was more authoritative than the precedent of the Court of Appeal since it came from the Supreme Court. [8] This is a prime example of the law being applied inconsistently.
The Court of Appeal later ruled that Supreme Court obiter dicta should’ve been followed: ‘[W]here the Supreme Court … directs that an otherwise binding decision of the Court of Appeal should no longer be followed and proposes an alternative test that it says must be adopted, the Court of Appeal is bound to follow what amounts to a direction from the Supreme Court even though it is strictly obiter’. [9] However, the obiter only becomes binding when the Supreme Court is addressing a specific issue in the law and makes it clear that their intention is to set precedent.
Foreign Judgement:
Generally, foreign judgements are not binding in other jurisdictions, but they are a source of persuasive authority. It can be useful to look at other rulings to see how they approached a legal issue.
‘we have much to learn from each other in our common efforts to achieve justice’. [10]
Justification:
They are not binding because of the differences between the law in different jurisdictions. Even when a statute is worded in a similar way, it may be applied in a different way between countries due to a differing legal culture / structure.
Parliament has sovereignty, so it is not for other nations to make and interpret laws for us. Interpretation of domestic law should not be an international issue.
If foreign judgements were binding, lawyers would just search for the applicable precedent in another jurisdiction to win their case. There would be a competition between our own precedent and others, perhaps leading to inconsistency in the application of the law.
If a citizen could be punished under another jurisdiction’s laws, then the rule of law would be violated as the citizen would not be aware of the law due to its complexity and uncertainty. This would be unjust, even when it might produce the morally correct outcome.
It is also a bit lazy to just apply the ruling of another nation.
‘ius gentium’ Argument:
The ‘ius gentium’ argument is that when multiple different jurisdictions apply the same precedent, it makes sense to follow them. By following these precedents, we would fall in line with internationally accepted laws and customs. Lord Bingham argues that competing precedents from other countries indicates a requirement for change and review, but it is still not binding due to legislative supremacy. [11]
Resources:
References:
[1] Roscoe Pound [2] Jonathan Montgomery et al, Hidden Law-Making in the Province of Medical Jursiprudence (2014) 77(3) MLR 343 183 [3] James Scott, Seeing Like a State (Yale University Press 1998) [4] London Tramways v. London CC [1898] AC 375 [5] Practice Statement [1966] 1 WLR 1234 [6] Willers v Joyce [2016] UKSC 44 [7] DPP v Patterson [2017] EWHC 2820 (Admin) at [16] [8] GMC v Krishnan [2017] EWHC 2892 (Admin) at [24] [9] R v Barton [2020] EWCA Crim 575 (Burnett LCJ) [10] Smith v Littlewoods [1987] AC 241, 281 (Lord Goff) [11] Fairchild v Glenhaven [2002] AC 32
Cases Mentioned:
Ivey v Genting [2017] UKSC 67
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