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precedent by itself is a source of law, which is a position

precedent by itself is a source of law, which is a position

In the UK, precedent by itself is a source of law, which is a position that is different from the Civil law nations, where precedent usually is not seen as a source of the law. In the UK, Common law itself is a creation of precedent, and it is often called the judge made law (Wilson, et al., 2016). The application of the doctrine of stare decisis, is an important factor in common law becoming a source of law. The doctrine gives the binding effect to the judge made law for subsequent cases (Wilson, et al., 2016). The application of the doctrine is seen through the maintenance of a hierarchical judicial system, so that the judgements of superior courts are binding on subordinate courts and the reporting of judgements in law reports, so that lawyers and judges have access to the judgement copies (Wilson, et al., 2016, p. 128). This essay discusses precedent as a source of law through the application of the doctrine of stare decisis within a system of hierarchy of courts.

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Precedent in the UK – Stare decisis

In the UK, the doctrine of stare decisis is used for setting the dimensions for the application of precedent. The meaning of stare decisis is to ‘let the decision stand’, meaning that a case once decided by the court must be followed in principle in subsequent similar cases (Slapper, 2016). The doctrine is the reason for the development of precedent in the first place and it is also credited for the development of the Common law. In the English legal system, the application of stare decisis is considered to be a given, or in other words, a necessary and consistent phenomenon (Komárek, 2011). This is in contrast with the Civil law nations, where judges are not entrusted with the power to create binding precedents. In that sense, the English legal system is unique, in that it allows the judge to make law as a proper source of law, which must be followed in subsequent cases (Vong, 2015). This is not to say that the concept of stare decisis is particular to the English legal system and it actually be seen in civil law countries as well, in the sense of following what is established in a previous judgement. The differentiating factor is that in the UK, the precedent is by itself a source of law (Vong, 2015).

Hierarchy of courts and the operation of precedent

The hierarchy of courts is the central feature behind the application of the rule of stare decisis. In the UK, precedent in order to by binding, must proceed from the court higher in authority. In general, the appellate courts are bound by their own decision in the previous case (Chadwick, 2011, p. 27). As per the Constitutional Reforms Act 2005, the Supreme Court was established as the highest court of Appeal in the UK, replacing the House of Lords (Chadwick, 2011, p. 28). As such, as long as the UK is a member of the European Union, the decisions of the Court of Justice (Costa v Enel (1964) Case 6/64. , 1964), as well as the European Court of Human Rights are binding on the courts in the UK (R (Ullah) v Special Adjudicator, [2004] UKHL 26, 2004).

In the UK, the hierarchy of courts reflects that different courts are needed for different cases, that is, civil courts for civil cases and criminal courts for criminal cases (Slapper, 2016). It also reflects the fact that appellate courts are needed for those instances where the lower courts may have erred in their judgement, thus, giving a second chance to the parties in a case (Slapper, 2016).

Overruling

In the UK, courts are bound by the precedent set by its superior court. One difficulty may arise in the case where the court that earlier set the precedent may now want to overrule it. This was seen in one case before the Court of Appeal, where the court had held that as a matter of general rule, it was bound by its own decision (Young v Bristol Aeroplane Co. Ltd, [1944] KB 718, 1944). In order to ensure that precedent does not become rigidly binding on courts, to the point of being followed even when they are obsolete, three exceptions were made to the rule (Young v Bristol Aeroplane Co. Ltd, [1944] KB 718, 1944, p. 725). These exceptions are as follows:

The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) The court is bound to refuse a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam" (Young v Bristol Aeroplane Co. Ltd, [1944] KB 718, 1944, pp. 725, Per Lord Greene MR).

Still, the above mentioned rules fail to answer in a situation where the following of precedent does not breach any of the technical rules as given above, but it does provide some injustice. This was corrected by the Practice statement issued by the Law Lords in 1966. The Law Lords departed from the hitherto held rules on precedent by holding that in case abiding by the precedent breaches rules of fairness and justice, the precedent should be overruled (Practice Statement (Judicial Precedent) [1966] 1 WLR 1234., 1966). However, it is important to note that precedent can only be overruled by the same court or court of higher authority. A lower court cannot overrule the precedent laid down by the higher court.

Conclusion

Precedent is a source of law in the UK and it is also the reason for the development of the Common law. The doctrine of stare decisis is used to create the binding effect of precedent, which operates due to the hierarchy of courts and the system of law reporting.

Bibliography

    1. Chadwick, A., 2011. The English Legal System. Brighton: Straightforward Co Ltd..
    2. Costa v Enel (1964) Case 6/64. (1964).
    3. Komárek, J., 2011. Judicial Lawmaking and Precedent in Supreme Courts. LSE Law, Society and Economy Working Papers, April.
    4. Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. (1966).
    5. R (Ullah) v Special Adjudicator, [2004] UKHL 26 (2004).
    6. Slapper, G., 2016. How the Law Works. Oxon: Routledge.
    7. Vong, D., 2015. Binding Precedent and English Judicial Lawmaking. [Online]
    8. Available at: https://www.law.kuleuven.be/jura/art/21n3/vong.pdf[Accessed 4 December 2016].
    9. Wilson, S., Rutherford, H., Storey, T. & Wortley, N., 2016. English Legal System. Oxford: Oxford University Press.
    10. Young v Bristol Aeroplane Co. Ltd, [1944] KB 718 (1944).

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