Advantages & disadvantages of following the practice of precedent in a legal sense

Answer:- The doctrines of binding precedent is concerned with the importance of case laws in English legal system. If one case has decided a point of law then it is logical that solution will be looked at in the future. The American Judge, Oliver Wendell said ‘the life of the law has not been logic it has been experience’, Miles Kingston put it another way: binding precedent means ‘A trick which has been tried before successfully’. According to Sir Rupert Cross, binding precedent indicates: all courts must consider relevant case laws.

Secondly, lower court must follow the decision of the courts above then in hierarchy. Finally, appellate courts are generally bound by their own decisions. As Lord Hailsham, the LC pointed out ‘in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the CA, to accept loyally the decisions of the higher tiers’. Before going to further discussion, the operation of precedent needs to be looked at. Before 1966, House of Lords was always bound by their own decisions.

In 1966 Practice Statement the Law Lords had decided ‘while treating former decisions of this House as normally binding, to depart from previous decisions when it appears right to do so’. If we look at the Court of Appeal, decisions are binding on the High Court and the county courts but they do not bind the House of Lords. In Young v Bristol Aero plane co. Ltd a full Court of Appeal of six members decided that CA Civil Division was normally so bound subject to the following three exceptions:

* Where its own previous decisions conflict. The court of Appeal must decide which to follow and which to reject. Where to follow a decision of its own which conflicts with a decision of the House of Lords even though its decision has not been expressly overruled by the House of Lords. * Where an earlier decision was given per incaution (by carelessness, or mistakes or error). (Rickards v Rickards, Peak, Lane). If ECJ or ECTHR overruled a previous decision of CA then CA might not follow it. It is persuasive. In CA criminal Division, when someone’s liberty is at stake, precedent is not followed or rigidly.

Coming to the discussion on the pros and cons of binding precedent the most important advantage is that ince cases are treated alike, litigants can plan their affairs and come to settlements with a certain amount of confidence. Case law is a response to real situations as opposed to statutes, which may be more heavily based on theory and logic. It allows the law to develop alongside society as happened in R v R. This case overturned a centuries old legal principle that a man could not rape his wife. Gillick can also be mentioned here. The right wing philosopher Hayek sees case law developing in line with market forces; if the ratio of a case is seen not to work, then it would not be followed.

In this way, the law can develop in response to demand. The existence of a precedent might prevent a judge making a mistake which he might have made if he had been left on his own guidance. It also saves court’s time as for most situations there is already an existing solution. Doctrine of binding precedent is based on a principle of fairness and justice. The interest of justice also demands impartiality from the judge. If he tries to distinguish an indistinguishable case, his attempt will obvious.

The process of overruling (Anderton v Ryan was overruled by R v Shivpuri), reversing (R v Kingston) and distinguishing (R v Jordan was distinguished in R v Smith) shows that there is flexibility to meet the needs of changing times. Hundreds of cases are reported each year, making it hard to find the relevant precedent which should be followed. The law is too complex with thousands of fine distinctions. The advantage of certainty is lost in this way. The rules of precedent means that judges should follow a binding precedent even where they think it is bad law or inappropriate.

This means judicial mistakes are perpetuated creating injustice unless someone has the money and determination to push a case far enough through the appeal system to the House of Lords for reconsideration. This system is too rigid and does not allow the law to develop enough. The convenience of following precedent should not be allowed to degenerate into a mere mechanical exercise performed without any thought. This sometimes leads the judges to take radical steps as taken in James & Karimi to correct the erroneous judgments of Camplin and Smith (Morgan).

It may be correct that criticism says it is not right of CA to decide such but it should be the HL to adopt Holey’s decision. Case laws are judicial decisions and the fact is that the judiciaries are overstepping their theoretical constitutional role by actually making law rather than applying it. In practice, judges sometimes have no choices but to embark on dynamic law- making. In the interest of the parties involved, a flexible stance is sometimes preferable but the doctrine of precedent should remain intact and the loyalty is towards the judges.