Last Updated 28 Jan 2021

Judicial Precedent Is Best Understood as a Practice

Category Justice
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Judicial precedent means the process whereby judges follow previously decided cases where the fact are of sufficient similarity. The doctrine of judicial precedent is a practice of the court, it provides guidance to the judges when they apply case precedents. It also provides certainty, consistency and clarity in the application of precedents. The rule is that judges should decide like cases in like manner. It is a decision of the court used as a source for future decision making. This is known as stare decisis and by which precedents are authoritative and binding and must be followed.

Doctrine of precedent or stare decisis, this item is from the latin phrase “stare decisis et non quieta movere”, means to stand by decisions and not disturb that which is settled. The doctrine of binding precedent based on stare decisis, that is standing by previous decisions. Once a point of law has been decided in a particular case, that law must applied in all future cases containing the same material facts. For example in the case of Donughue v Stevenson (1932) AC 562. The House of Lords held that a manufacturer owed a duty of care to the ultimate consumer of the product.

This set a binding precedent which was followed in Grant v Knitting Mills (1936) AC 85. The ratio decidendi forms the legal principle which is a binding precedent meaning it must be followed in future case containing the same material facts. Besides, the obiter dicta is things stated in the course of a judgment which are not necessary for the decision. The decision of the judge may fall into two parts, the ratio decidendi means reason for the decision. The ratio decidendi in a case is the principle of law on which a decision is based.

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When a judge delivers judgment in a case he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and arrives at a decision, for which he gives the reason. Besides, obiter dictum means something said by the way. The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in the original case. However, an obiter dictum may be of persuasive authority in later cases.

For example, in the case Donoghue v Stevenson (1932), the house of lords held that a manufacturer owed a duty of care to the consumer that products are safe because the circumstances prevented the consumer from discovering any defects. This is a ration decidendi and lord Atkin’s “neighbour test” was obiter. Where there is no existing precedent, the court will declare the law and the case will become an original precedent, example, in the case Airedale NHS Trust v Bland (1993) HL, where the courts were asked to decide if food and treatment could be lawfully withdrawn from a patient in a persistent vegetative state, and thus allowed to die.

The concept of ratio decidendi tries to link the competing aims of the notion of rule of law, ie, the requirement of certainty in the application of law and flexibility in the development of law within the legal system. To identify the ratio in a case, Professor Goodhart (1931), set out a method of identifying the ratio decidendi as the ratio is derived from the application of the law to the facts that were treated as material by the judge in his decision and generalising them to make a principle.

Besides that the principle of the case is found by taking account of the facts treated by the judge as material ; and his or her decision as based on them. The principle is therefore a formula, which the facts fit, and the facts provide a specific instance or example of the application of the principle. However, Professor Julius Stone (1959) argued that Goodhart’s theory was prescriptive rather than being descriptive of actual practice.

In Stone’s analysis, the ratio of a case is part of a legal category of indeterminate reference or concealed multiple reference. The facts of a case precedent are able to be material under a wide range of fact descriptions, but any given decision was open to a succession of subsequent judicial reformulations of the prior decision. So, the question for the later court is the analogical relevance of the prior case holding to the later case, thus requiring the later court to choose between possibilities presented by the earlier case.

This gives us a picture of radical indeterminacy . This is because the later courts appear to have great freedom in reinterpreting the actual ratio of the certain case. Stone’s approach is considered as a rather radical scepticism towards the concept of ratio. Consequence of the indeterminacy of the ratio is the difficulty in identifying the ratio of a case actually provides the English common law system the flexibility when case law is applied and its subsequent development through the courts.

From Cross (1991) who argues “it is impossible to devise formulate for determining the ratio decidendi of a case”, but ‘this does not mean it is impossible to give a tolerably accurate description of what lawyers mean when they use the expression’. Consequently, courts have a great deal of choice in reformulating and interpreting law. In his work on legal reasoning , Neil MacCormick (1987) makes the point that often the ratio of a case can only be determined in light of what judges subsequently make of it.

In conclusion, the discussion above have gone to establish that the doctrine of binding precedent is nothing more than a practice of the English judiciary. As a judicial practice, the doctrine provides a guide to judges on how case precedents are to be applied in courts. If the doctrine is avoided or not allowed, there are no legal sanctions or consequences. At worst, if there is a rampart ignoring of the doctrine by the courts, the outcome will be uncertainty and instability in the common law and its development.

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