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Judicial Precedent -------------------------------------------------------------------------------- EXAMINATION QUESTIONS AND SYLLABUS AREA Case law - Analogy, rules and precedent (binding and persuasive). Ascertaining the ratio decidendi. Following, over-ruling and distinguishing. Specimen/2 "In this country it was long considered that judges were not makers of law but merely its discoverers and expounders. The theory was that every case was governed by a relevant rule of law, existing somewhere and discoverable somehow, provided sufficient learning and intellectual rigour were brought to bear . . . . But the true, even if limited, nature of judicial law-making has been more widely acknowledged of recent years" (Jones v Secretary of State for Social Services 1972, per Lord Simon) Discuss. 1981/4 "All that I am against is too rigid applications - a rigidity which insists that a bad precedent must be followed. I would treat it as you would a path through a wood. You must follow it, certainly so as to reach your end. But you must not let the path become too overgrown. You must cut out the dead wood and trim off the side branches, else you will find yourself lost in thickets and brambles. My plea is simply to keep the path to justice clear of obstructions which would impede it." (Lord Denning, The Discipline of Law). Comment upon this view of judicial precedent. 1982/7 It has been argued that the individual judge must be left with enough discretion to decide in the light of the circumstances everything that cannot be justly settled by general rule. Discuss this view of the function of the judge in relation to judicial precedent. 1983/5 By reference to the concept of judicial precedent explain how case law is made. 15 Give an account of any decided case which in your view has made an important contribution to English Law and explain how it has done so. 10=25 1984/6 "In any state there must be some power ultimately capable of altering and declaring the law." Discuss in relation to the United Kingdom. 1986/1 "Precedent depends upon the recording of cases, the hierarchy of the courts, but above all on attitude of the judges". Discuss. 1988/1 "We do not believe in fairy tales anymore. So we must accept the fact that for better or worse judges do make the law, and tackle the question how do they approach their task and how should they approach it." Lord Reid, The Judge as Law Maker (1972) 12 J.S.P.T.L.22 Discuss. 1989/5 "Case law consists of the rules and principles stated and acted upon by judges in giving decisions. In a system based on case-law, a judge must have regard to these matters: they are not . . . merely materials which he may take into consideration in coming to his decision". R. Cross, Precedent in English Law. Discuss. 1991/7 Discuss the proposition that the doctrine of binding precedent is fundamental to our legal system. 1992/6 Discuss the following statement. "Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law". Lord Gardiner L.C. Practice Statement (Judicial Precedent) [1966]1.W.L.R.1234 1993/1 What do you understand by the term the doctrine of precedent? To what extent does this doctrine lead to the common law being responsive to change? 1994/2 The doctrine of precedent depends on three things: the hierarchy of the courts, the written records of cases and the approach of the judges. Discuss the relative importance of these three things. 1996/4 "In practice the characteristics of the case law process impose the most important limitations on judicial law making. The process is unpredictable, based on limited evidence and is incremental in nature." ('A' Level Law Dugdale et. al.) Discuss critically this view ofjudicial law making. (25) 1997/2 "The traditional view of the function of an English judge is that it is not to make law but to decide cases in accordance with existing rules." (English Legal System, Walker & Walker). Discuss critically this statement in relation to the doctrine of precedent. (25) 1997(modular)/5 Discuss the importance of persuasive precedent in the development of English legal principles. 1998/7 "¡K legal decisions can logically by logical means from predetermined legal rules without reference to social aims, policies, morals standards¡K" (H.L.A. Hart, Positivism and the Separation of Law and Morals (1958) 71 Harvard Law Review 593 at p. 602.) Discuss how far the attitudes of the judges to precedent determines the way that they apply the system of precedent. 1999/4 Read the extract below from 'An Introduction to Law' by Phil Harris. The doctrine of precedent states that a decision made by a court in one case is binding on other courts in later cases involving similar facts. In this way, uniformity within the law is, in theory, to a large extent maintained, and one of the most basic demands of our conception of justice is met, by the treating of like cases in like manner. Allen, in his review of the history of the doctrine, presents evidence that English judges were making use of previously decided cases as guides as early as the thirteenth century. But it was not until the sixteenth century that the availability of reports of decided cases - and some of the earlier series of law reports were grossly unreliable and inadequate - brought any certainty or consistency into the operation of what gradually became the doctrine of binding precedent. Precedent is the basis of the common law; that body of law emerging from cases as they are decided by the judges. We have seen several examples of cases containing points of sufficient legal importance to constitute precedents - Shaw v. DPP with its statement of law relating to conspiracy to corrupt public morals, which was followed in Knuller v. DPP ten years later; Donoghue v. Stevenson in 1932, containing Lord Atkin's statement of the 'neighbour principle' which was to become the foundation stone of later cases involving negligence, and so onm. What we are concerned with here is precedent in theory and in pratice: how the practical operation compares with the formal rules of the doctrine. Discuss the ways that the judges have used the doctrine of precedent to develop the law to meet their perception of the need for legal development. -------------------------------------------------------------------------------- PRECEDENT IN THEORY Introduction The doctrine of precedent is that of stare decisis (standing by previously decided rules of law). It only applies to rules of law decided in superior courts, is applicable to all future cases, and is immediately operational. It should be distinguished from res judicata, which means standing by a past decision unless it is reversed (as distinct from overruled) on appeal, applicable in all courts, only affecting the parties to a case, and operational once all appeals have been exhausted. Both doctrines are of practice rather than law, although they are, in effect, as binding (or more so) than any statute. Judicial overruling is retrospective (i.e. any cases that appear before the court in the future having happened before the date of overruling will be decided on the basis of the rule that was not in existence when the act (etc.) was committed) - unlike statutory overruling; it is said that the earlier rule did not exist, and the law is being restated correctly. Unreported cases are still binding, but judges will only allow them to be used if the same principle is not contained in a reported case, if a barrister present for the whole time the judgement given vouched for its veracity, if the court granted leave, and if the counsel assured the court that the unreported case contains a binding authority. A settled hierarchy of courts emerging between 1873 and 1876 (through the Judicature Acts 1873-5) meant that it was clear who should obey whom, and allowed for the modern system of stare decisis to grow and thrive (although it should be noted that there was a system of precedent before this date.) Persuasive and binding precedents Precedents may be persuasive or binding. To be binding the precedent must: Be contained within the ratio decidendi (i.e. the legal reason for deciding the case, for example: in a case the facts may be that a person made a gratuitous promise to unblock your drains, the ratio decidendi would be that a contract requires consideration), and Be a decision made by a higher (or in certain cases, the same) court. If a precedent is not contained in the ratio, then no matter what court it was made in, it is not binding, merely persuasive. Such precedents are termed obiter dicta (things said by the way, e.g., in the previously cited example, the judge might say "But if he had been offered payment to unblock your drains, then the case would have been won."). In essence, any 'rule' of law that does not satisfy both of the conditions above is a persuasive precedent. Persuasive precedents should, in general, be followed unless there is a good reason not to do so. It is not always easy to tell whether something is a dictum or is a ratio; but if something is expressed in the conditional, it is usually a dictum.
Approximate Word count = 6092
Approximate Pages = 24.4
(250 words per page double spaced)
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