Last updated: May 17, 2019
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Everything in the world repeats, and it is not an exception for law, providing that ‘some degree of certainty’ of law is essential. In English legal system the doctrine, which brings together the past and the present is the doctrine of judicial precedent, which predominant value is irrefutable. However, it is a disputable question, whether the bias of the doctrine on the maintenance of the judicial authority is accurate and contemporary.The nature of precedent can be described by putting the words of Lord Denning in London tramways case: Rule of precedent is not a rule of law at all, but a practice laid down by the court for its own guidance; and this practice can be amended or altered.

Thus, the precedent should be deemed as ‘judicial practice rather then a doctrine’ . However, the maintenance of this practice should be described in order to discuss its’ value.The doctrine of precedent is usually defined by the Latin phrase, which has formed the doctrine of precedent as it stands now: stare decisis et non quieta movere.

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That is ‘to stand by decisions and not to disturb settled matters’, in other words, previous cases may be binding for the consequent cases. The doctrine consists of some elements, the first of which is the role of the judicial hierarchy. To be more precisely, lower courts are bounded by superior courts’ decisions (vertical aspect) and decisions of courts of equal level of the hierarchy (horizontal aspect).These are binding precedents. However, persuasive precedents (decisions of lower courts, Scottish and northern Irish courts, foreign courts in common law) cannot be disregarded . However, these general statements are not able to tell the judge whether the doctrine should be applied when two cases are similar. The further complexity here is the fact that the particular data changes from case to case and no identical cases can be founded. Here, words of Glanville Williams can be put: ‘cases must be decided the same way when their material facts are the same’.

In connection with this, ratio decidendi should be named. Although the multitude of judges and distinguished authors have tried to give a definition of this expression, it is still a complex area. The one, given by Glanville Williams seems to be the most appropriate: The ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon. Moreover, several rationes can be found in one case and the judge can choose one he or she needs this time. One more difficulty connected with the perception of the atio. Obviously, the ratio in the particular case depends on material facts, that is, ‘those facts which were important in the judge’s formulation of a rule which proceeds an inch beyond those material facts is suspect’ and ‘the subjective response of the particular judge to particular data’. This can be lead from the fact that the subsequent judge, identifying the ratio, can apply, reinterpret, criticize, modify or distinguish and depart from legal principles, established in the previous decision.Investigating the doctrine of precedent seems reasonable to consider obiter dicta: Statements of opinion upon the law and its values and principles in their bearing on the instant decision, statements which in some way go beyond the point or points necessary to be settled in deciding the case.

In other words, obiter dictum means any information, not related to the material facts, ‘said by the way’. Judges are not bounded to follow obiter dictum, however, it can become a ratio in the subsequent case. The content of judicial precedent (its function) is not a straightforward question to answer.However, attempting to do so, the first point is that the doctrine of precedent stands in close relation to the court hierarchy and the second is about the place of judiciary as a whole system under the doctrine of separation of powers. According to the latter, that is Parliament and not the judges who make the law.

Indeed: In the field of statute law the judge must be obedient to the will of Parliament as expressed in the enactments. In this field parliament makes and unmakes the law, the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires. Our law requires the judge to choose the construction which in his judgment best meets the legislative purpose of the enactment. In this connection Bellinger v. Bellinger case, which conserved the separation of powers between the judiciary and the legislature, preventing judges to make the law, needs to be named .

Conversely, the positivist approach states that judges make and change the law.Moreover, as Lord Browne-Wilkinson Kleinwort states, “The whole of the common law is judge made and only by judicial changes in the law the common law kept relevant in a changing world. To support this approach, several cases reflecting judicial creativity can be named, particularly, R. v. A. , S. v.

H. M. Advocate , and others. However, the most popular example is Regina v. R. , which provides extremely bold interpretation of the Sexual Offences Act by Lord Lane, where it was founded that a husband can rape his wife.

The next point is about the hierarchy of the courts, that is to say, whether the system which aid is to make the judicial activity clear, certain and predictable approves itself.Thus, the tension between certainty and flexibility appears. This is maybe the most debatable area in the judicial precedent until today and the question whether an egg or a hen was the first is valid here. The particular issue is whether the need for developing clear and certain general rules and rigid following the judicial precedent or achieving just and fair decision in each case is of predominant value. It is traditionally stated that: “The hierarchy of the courts is based on the ‘respect’ given to the decisions of superior courts” .In this connection seems necessary to name London tramway case, which had established the nature of precedent – ‘preference for clear, certain and unequivocal decision’. However, it is important to distinguish the former and the contemporary system, as the judiciary is a developing sphere and it cannot survive in vacuum, not conforming cultural, social and political developments. In comparison with London tramway case, after the practice statement in 1966 the duty to be obedient to previous decisions and to decisions of the higher court was changed .

The Practice statement established that judges now are ‘normally bound’ by previous decisions, however it is possible for them to distinguish from it ‘when it is right to do so’. As it was placed: Too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. Furthermore, it consolidated the dual function of the precedent: general rules should be developed, however the need for these rules to be changed in exceptional cases should not be ignored.Nonetheless, after 1966 distinguishing from precedent has not became wide spreaded.

Thus, the question whether the rule that the Court of Appeal could depart from its previous decisions appeared. Lord Denning in Davis v Johnson has made an attempt to reverse this rule by extending the Practice statement, if the decision was per inucurum (Broome v. Cassel ), that is, the court ‘had missed some vital statutory provisions’ and this lead to incorrect decision. However, he was stopped by the House of Lords.Nevertheless, the Practice Statement was applied, for instance, in Miliangos v. George Frank (where it was also decided that changing the rule does not compulsory lead to dramatic changes in constitutional principles) , in R v. Shivpury, the House of Lords overruled itself only ‘because it felt the earlier decision was wrong’.

However, in Young v. Bristol Aeroplane Co. it was conserved that the Court of Appeal, found its previous decision incorrect is still bound to follow it, and recommended to appellate to the House of Lords. Nevertheless, it is obviously that boundless flexibility and judge’s power would lead to nothing but chaos, as it was indirectly stated in R.

v. Clegg , C. v.

DPP. Judicial interpretation itself is a complex process, which depends on different factors, for instance, subjective approach of the judge who attempts to use a precedent, different meaning of the same words, finding different material facts, and others. It is also a question of great value, where the ‘constitutional constraints for interpretation’ are.Taking everything into consideration, the doctrine of judicial precedent is a fundamental and element of English legal system, which has proved its predominant value for the maintenance of judicial authority during the history.

Although this doctrine is criticized for the fact that ‘strict adherence’ to it limits flexibility and this sometimes leads to unfair and unjust decision, the abolition of the doctrine of precedent cannot lead to any positive result, but to unlimited power of any section of the judicial branch of power and confusion of proxies between judiciary and legislature.Overall, the doctrine has to implement something particularly impossible – to fulfill the requirements of certain and clear system and of fair and just result simultaneously. This was achieved in 1966 in Practice statement, however judicial system is developing and improvement are still coming case by case.