The System of precedent is both essential to
The System of case in point is both indispensable to the working of the English Legal System and inextricably linked with the procedure of judicial reading.
The system of case in point, through which Judgess shape the jurisprudence by making and following case in points from earlier instances, is cardinal to the development of English common jurisprudence. Central to the application of case in point is that similar instances should be treated in the same manner. Judge made jurisprudence on the footing of old instances that have come before the tribunals is one of the oldest beginnings of jurisprudence. While non sole to the English legal system, it has a bigger function in the development of English jurisprudence than in other states, for illustration Germany ( Markesinis, 2000 ) . It is based on a hierarchal system of tribunals, with tribunals being bound by determinations of higher tribunals every bit good as their ain determinations in old similar instances. The regulations of case in point require that in certain fortunes a old determination be followed whether the subsequent tribunal approves of the case in point or non although there is latitude for higher tribunals to divert from their ain old determinations when they believe it is right to make so.
At the bosom of the English legal system is the philosophy of ‘stare decisis’- Lashkar-e-Taiba the determination base. This refers to the fact that determinations in a tribunals are adhering on lower tribunals. When Judgess come to do determinations they will look into if a instance with sufficiently similar facts has antecedently been before the tribunals. If such a state of affairs has occurred and the old tribunal was of equal or higher position, so the justice will be bound by the old determination. Where a case in point is from a tribunal lower in the hierarchy a justice, while non bound to follow it, will about decidedly see it when doing opinion.
The Hierarchy of Courts and the Doctrine of Binding Precedent:
At the top of the tribunal hierarchy is the House of Lords whose determinations are adhering on all other tribunals. Up until 1966 the House of Lords was besides adhering on itself.
The House of Lords ruled that it was bound by its ain determinations inLondon Tramways v London County Council[ 1898 ] AC 375. The House of Lords believed that it should be bound by its old determinations to give some grade of certainty to the jurisprudence by virtuousness of its place as the highest tribunal in England. This was non a position held by all and did non, in fact, afford the coveted grade of certainty.
On 26 July 1966 Lord Gardiner delivered a statement on behalf of the Lords of Appeal stating that the House was free to go from its old determinations when it appeared right to make so. Despite holding this freedom, the House of Lords has seldom departed from old determinations. It does intend that the House of Lords is free to alter the jurisprudence to accommodate to social alterations and to take history of determinations of higher tribunals in the Commonwealth.
The House of Lords overturned a old determination inMiliangos V George Frank Textiles Ltd.( 1976 ) . The instance concerned non-payment of monies in a foreign currency. In doing their determination, the jurisprudence Godheads overturned a old consentaneous determination inUnited Railways of Havana & A ; Regla Warehouses Ltd. ( 1961 ) .
In his summing up Lord Wilberforce made the undermentioned remarks:
‘The jurisprudence should be antiphonal every bit good as, at times, enunciatory, and good philosophy can rarely be divorced from sound pattern.
It is wholly within this House’s responsibility, in the class of administrating justness, to give the jurisprudence a new way in a peculiar instance where, in rule and ground, it appears right to make so.’
The Court of Entreaty:
The Court of Appeal is normally bound by old determinations of the House of Lords in civil instances. The Court of Appeal has, on juncture, attempted to travel off from the philosophy ofstare decisis, frequently spearheaded by Lord Denning, but the House of Lords has by and large asserted its ability to adhere the Court of Appeal by its determinations. While the House of Lords recognised the demand to equilibrate certainty in the jurisprudence against the demand for range to develop it, it saw itself, and non the Court of Appeal, as holding this map by virtuousness of its position.
There have however been occasions on which the Court of Appeal has deviated from determinations made by the House of Lords. This has frequently involved raising the Human Rights Act and determinations which have been overruled were decided before the Act came into consequence. The Court of Appeal used subdivision 3 of the Human Rights Act inMendoza V Ghaidan( 2002 ) to travel against the House of Lords determination inFitzpatrick V Sterling Housing Association Ltd.( 1999 ) . The ulterior determination inMendoza V Ghaidanallowed same sex spouses to inherit a statutory occupancy under the Rent Act 1977.
Below the Court of Appeal merely the Divisional Courts and the High Courts are able to make case in point. Lesser tribunals can non make case in points but are bound by those of higher tribunals.
Judicial reading of the jurisprudence and old determinations in doing opinions is important. In turn overing the Court of Appeal’s determination inMcLoughlin V O’Brian and others ( 1982 ), judicial reading was a important component. The plaintiff’s hubby and three kids had been involved in a route traffic hit. As a consequence of hearing and seeing the effects of the accident, the complainant has suffered terrible and relentless nervous daze. She sought amendss from the suspects claiming that her wellness had suffered as a consequence of their carelessness. The justice dismissed her claim on the footing that her hurt was non moderately foreseeable and that the suspects owed her no responsibility of attention because she was non in near adequate propinquity to the accident. The justice said that the responsibility of attention owed by a driver of a motor vehicle in the instance of an accident was restricted to individuals on or near the route.
The complainant appealed to the House of Lords who reversed the Court of Appeal’s determination, construing otherwise the trial of liability:
‘The exclusive trial of liability is sensible foreseeability without any legal restriction in footings of infinite, clip, distance, the nature of the hurts sustained or the relationship to the victim since ( per Lord Bridge ) there are no policy considerations sufficient to warrant restricting the liability of negligent tort-feasors by some narrower standard than that of sensible foreseeability.’
Society is unstable and invariably accommodating and the law-making procedure must reflect this. Precedent is a cardinal portion of this procedure and as Zander points out, it is hard to gestate of a legal system in which case in point plays no portion at all ( Zander, 2004, p.215 ) . It is an indispensable portion of the legal system in that it gives Judgess counsel when doing determinations. The importance of judicial reading and ability to divert from old determinations was summed up by Lord Denning who commented therefore inDavis v. Johnson( 1979 ) ,
‘On principle… whilst this tribunal should see itself as usually bound by a old determination of the tribunal, nevertheless it should be at autonomy to go from it if it was convinced that the old determination was wrong… .
It is said, that if an mistake has been made, this tribunal has no option but to go on the mistake and go forth it to be corrected by the House of Lords.
The House of Lords may ne’er hold the chance to rectify the mistake and it may be perpetuated indefinitely, possibly forever.’
Evans, J. ( 2003 ) ( 3rdedition )English and European Legal Systems.London: Old Bailey.
Griffith, J.A.G. ( 1997 ) ( 5Thursdayedition ) .The Politics of the Judiciary.London: Fontana.
Howarth, D.A. & A ; Wilson, S.R. ( Eds ) ( 1989 )Blackstone’s Statutes on the English legal System.London: Blackstone Press.
Ingman, T. ( 2006 ) ( 11Thursdayedition )The English Legal Process.Oxford: Oxford University Press.
Levenbrook, B.B. ( 2000 ) The Meaning of a Precedent.Legal Theory,6, 185-240.
Markesinis, B. ( 2000 ) Judicial Styles and Judicial Reasoning in England and Germany.Cambridge Law Journal,59, 2, 294-309.
Slapper, G. & A ; Kelly, D. ( 2004 ) ( 7Thursdayedition )The English Legal System.London: Cavendish Publishing Limited.
Slapper, G. & A ; Kelly, D. ( 2002 ) ( 2neodymiumedition )Sourcebook on the English Legal System.London: Cavendish Publishing.
Zander, M. ( 2004 ) ( 6Thursdayedition ) .The Law-Making Process.Cambridge: Cambridge University Press.
Zander, M. ( 2003 ) ( 9Thursdayedition )Cases and Materials on the English Legal System.London: Butterworths.