Evaluate the Advantages and Disadvantages of the Doctrine of Precedent in English Law.docx

evaluate the advantages and disadvantages of the doctrine of precedent in english lawthe doctrine of precedent is the backbone of the english legal system. precedent is defined as “a judgement or decision of a court cited as an authority for deciding a similar set of facts; a case which serves as an authority for the legal principle embodied in its decision.” mick woodley, osborns concise law dictionary, london, sweet & maxwell 2009,eleventh edition, p.317 binding precedents are known as “stare decisis”. within the hierarchical structure of the english court system, a decision given by a court in the higher hierarchy should bind any lower hierarchical court. however, judgments given by a lower hierarchical court will not bind the higher level courts. generally, both the supreme court and the court of appeal consider themselves bound by their own previous precedents. only in very rare circumstances such as “per incuriam” could they depart from their previous decisions by distinguishing the cases or overruling the previous principles.it seems that, when looking back to the history, the doctrine of precedent was not applied in this country as strict as it is today. in 1869, a judge of the first instance would have no compunction if he considered that the decision given by the lord chancellor hearing chancery appeals was clearly mistaken therefore he must decline to follow the precedent for the case in front of him at present. see collins v. lewis, lr 8 eq. 708) the rule that the house of lords (now the supreme court) should be self-bound by its past decisions was not completely settled until the late 19th century. see beamish v beamish 1861 9 hl cases 274 the rule that the court of appeal is self-bound by its past decisions was also a fresh creature of the 20th century. see young v bristol aeroplane co. ltd 1944 kb 718, 1944 2 all er 293 also, it was only from the 20th century that the divisional courts have come to apply the principle of “stare decisis” to their own past decisions in its full rigour. rupert cross and j. w harris, precedent in english law, clarendon press, oxford 1991, fourth edition, chapter one (8), history of the english doctrine of precedent never in history did supporters and critics stop debating the legitimacy of the doctrine of precedent. there are considerable debates about the merits and demerits of this doctrine. the aim of this paper is to examine the advantages and disadvantages of the doctrine of precedent in english law. both the arguments in favour and against this doctrine will be analysed by making reference to illustrative cases heard by british courts. 1. advantages of the doctrine of precedent1.1 certainty and consistencyprecedent advocates could assert that the operation of the doctrine of precedent contributes to the certainty and consistency in the legal system. binding precedents make the law predictable and promote a sense of fairness in english law. judges in english courts are under the obligation to follow the rules established by a court of equal or higher status in similar cases, even though they may personally not agree with that judgement. in this way people know what to expect as previous decisions will necessarily be followed. no personal bias of the judges will be allowed to exclude the application of precedent. in a case concerning a book about a naval disaster, cassell v broome 1971 2 qb 354, 1971 2 all er 187, the plaintiff appealed for damages in a way which had been assessed in a libel case. in the court of appeal, lord denning mr believed that in rookes v barnard 1964 ac 1129; 1964 1 all er 367, the decision of the house of lords had been made per incuriam so the court of appeal could reach a decision contrary to the previous decision. however, when cassell v broome appealed to the house of lords 1972 a.c. 1136, 1972 1 all er 801, the law lords rebuked lord denning for making such an excuse for not to adhere to stare decisis. held by lord hailsham 1972 1 all er 801 at 810 : when the court of appeal described the decision in rookes v barnard as decided per incuriam or unworkable they really only meant that they did not agree with it. but, in my view it is not open to the court of appeal to give gratuitous advice to judges of first instance to ignore decisions of the house of lords in this way the course taken would have put judges of first instance in an embarrassing position in legal matters, some degree of certainty is at least as valuable a part of justice as perfection.as could be seen from cassell v broome, in order to impose a sense of certainty and maintain its consistency in the legal system, judges in the english courts are required to try their best endeavour to deal with similar cases in the same way as previous cases. legislation always provides a general rule for a kind of matter but it leaves a gap between real facts and the written status. cases provide details of individual cases instead of leaving the cold words in the legislation for judges subjective understandings and further arguments. it is not unusual that different judges have different understandings about the legislative intent and, more likely, dispute the meaning of some particular words in the articles, where the scope or definition is vital to the case. suppose the judgements for two cases, in which the facts are quite similar, are opposed because of the judges personal views, it can damage the authority of law. it is important for english legal system to provide a sense of justice and make the system acceptable to the public, which means a citizen should have certain confidence in the legal consequence of a case before the judge. a precedent is an interpretation of legislation, making it clear what the legal consequence of the specific matter will be. 1.2 flexibilitybinding precedents, apart from contributing to the certainty of law, should enable the legal system to have a proper degree of flexibility as well. under the english legal system, the function of flexibility could be achieved by judges distinguishing cases or overruling principles. when a judge, based on the particular facts in the present case, argues that the application of the precedent will lead to injustice, the judge could make a judgement without following the precedents. additionally, a court in the higher hierarchy can, by overturning or reserving the decision of the lower court, reach a different decision. holland and julian webb, learning legal rules, oxford university press, 7th edition, p.211, chapter7.11(c), how precedent operates. although overruling only happens in very rare circumstances, distinguishing cases is a way to give the common law enormous flexibility and encourage the development of the law. an example of distinguishing cases by a comparison of facts could be r v pleydell (michael aaron) 2005 ewca crim 1447 , which distinguishing from r v woodward (terence) 1991 1 wlr 375; 1995 3 all er 79. both the two cases in the court of appeal concerned causing death by dangerous driving. in woodward, the evidence from two of the drivers friends that the driver had been seen with a glass of alcohol in his hands was held not to be admissible because there was no evidence of quantity consumed or effect. this was distinguished in pleydell where there was evidence from a forensic medical examiner, by taking a blood sample from the appellant at the police station, that the driver had consumed cocaine before driving. the decision in woodward was also distinguishable because cocaine was illegal and alcohol was not. when people speak highly of the merits of the precedent doctrine, some people criticize from the other side claim that this system is not without its shortcomings.the following paragraphs listed three of the all points supporting their opinion.2. disadvantages of the doctrine of precedent2.1 complexityfirst, it seems that massive amount of precedents make the english law extremely complex. after several centuries development of the english law, the number of precedents is beyond count in this jurisdiction. when a case is given to a solicitor, barrister or judge, finding the best relevant precedent for the case at hand is always cockamamie fussy and time-consuming. when searching for the authority, the lawyers are supposed to explain the intricate distinctions between precedents and the given case before giving his opinion to the given case. there is always too much information seems to be relevant so even experienced lawyers complain about this cumbersome arguing and decision-making process. in order to enter a judgement for a case, the judge may need to cite a significant amount of precedents with his analysis, which makes the judgement a considerable length.2.2 confusion about ratio decidendi and obiter dicumsecondly, the rule in this doctrine is that only the ratio decidendi mick woodley, osborns concise law dictionary, london, sweet & maxwell 2009, eleventh edition, p.344 ratio decidendi : the legal reason (on ground) for a judicial decision. it is the ratio decidendi of a case which will be binding on later courts under the system of judicial precedent. in the precedent is binding to the subsequent cases. the obiter dicum mick woodley, osborns concise law dictionary, london, sweet & maxwell 2009,eleventh edition, p.290 obiter dictum: a saying by the way an observation by a judge on a legal question suggested by a case before him, but not arising in such a manner as to require decision. it is therefore not binding as a precedent., however, only has persuasive but not compulsory effects. therefore, in order to persuade the court to apply or distinguish the precedent. it is most likely that the lawyer will try to tell what the ratio decidendi is in the previous case and whether the material facts of the two cases are sufficiently similar to illustrate the same principle. however, it is always difficult to distinguish between ratio and obiter. the ratio maybe widened in the later cases (by reducing the facts stated in it thus raising the level of abstraction), or conversely, it may be narrowed by the opposite process. michael zander, the law making process, cambridge university press 2004, sixth edition p. 274 one instance is shown in two well-known cases, donoghue v stephenson 1932 ac 562and grant v australian knitting mills 1936 ac 85 (privy council). in donoghue v stephenson, a decomposed snail was found in mrs donoghues ginger-beer. mrs donoghue sued the defendant manufacturer (stephenson) for damages owing to the negligence arising from the manufacture of the product. the claim was successful for mrs donoghue. the house of lords in majority agreed that a manufacturer will be liable if he sells his products in a form which shows they are meant to reach the ultimate consumer in the same standard as when they were manufactured. the manufacturer should know that the absence of reasonable care will cause injury but he fails to fulfil such a duty of reasonable care. four years later in grant case, mr grant suffered a severe dermatitis after using the underpants brought from the defendant so he took a negligence action against the australian knitting mills. the lawyers acted for the defendant company responded with a number of arguments. three among them were: (i)the principle in donoghue v stephenson should only apply to cases of food and drink and cannot extend to cases about underpants. when lord atkin referred to ”products” he could only refer to the product in the case. (ii) no other person than the manufacturer could tampering the beer bottle but the underpants were loosely packed and exposed to any tampering. (iii) it is acceptable that a reasonable person would wash his underpants before wearing so the plaintiff could by himself remove the danger. holland and julian webb, learning legal rules, oxford university press, seventh edition, chapter7.11(c), how precedent operates. all these arguments were dismissed by the court, held in favour of mr grant by following the principle laid down in donoghue v stephenson. nevertheless, was the defence from the defendant entirely groundless?2.3 perpetuation of bad decisions thirdly, since lower courts are under the obligation to follow higher courts, bad decisions seems to last perpetuate. once a case decided in front of a court, the principle set up in the precedent will not be able to change until another similar case goes to the higher hierarchy. a simple demonstration to this point is that not until 1991 in r v r 1991 3 wlr 767; 1991 4 all er 481 was “marital rape” was concerned and rape in marriage could be accepted as a crime. it could be traced back to 1958, in r. v chapman 1959 1 q.b. 100; 1958 3 w.l.r. 401; 1958 3 all e.r. 143, the court of criminal appeal held that unlawful in the sexual offences act 1956 s.19(1) the sexual offences act 1956 s.19(1) , provides: it is an offence . . . for a person to take an unmarried girl under the age of eighteen out of the possession of her parent or guardian against his will, if she is so taken with the intention that she shall have unlawful sexual intercourse with men or with a particular man. merely meant illicit, i.e., outside the bond of marriage. a man would never found to be guilty when he had sexual intercourse with his wife without her consent holland and julian webb, learning legal rules, oxford university press, seventh edition, page 179, chapter six, the doctrine of judicial precedent. the idea was confirmed another time by sir matthew hale in his history of the pleas of the crown written in 1736. eventually the precedent was overturned by their lordships before r v r (1991) confirmed that the assumption was no longer applicable in modern times because marriage is now viewed as a partnership of equals.so far as this paper concerned, it seems that the virtues and flaws of the doctrine of precedent in the english legal system are always co-existed. by recognizing its contribution to the certainty and consistency of the law, it could be criticize that precedents make the law rigid, complicated and block the development of the law at the same time. when arguing that the operating rule of this doctrine also leave room for flexibility, corresponding refutation could be its threat to certainty, predictability and the fairness of the law. it seems hard to only benefit from advantages of this doctrine but leave out the negative influences from its disadvantages. personally i would definitely appreciate the positive effect of this doctrine on the english legal system. precedents are the foundation of the english legal system. it is precisely because of the precedents that enabl