Critically examine the doctrine of Precedent

Critically examine the doctrine of Precedent. Giving reasons for your view and using cases to illustrate your answer, consider whether the doctrine strikes the best balance between certainty and flexibility. The doctrine of precedent is fundamental to the English Legal System, it provides both the procedural and conceptual underpinnings that have developed and continue to develop English law. The English legal system is based upon a common law system where there is no specific constitution and the law is developed largely through adversarial court cases rather than parliamentary involvement.

It is often considered to be a strength of English law that it is built upon concrete examples provided by cases rather than through hypothetical models. The doctrine of precedent plays a vital role within this system, being charged with ensuring that the law evolves and changes with the pace of society and modern thinking in a consistent manner. As the question alludes to, the balance between certainty and flexibility is an inherent trade off within any legal system.

Legal certainty allows citizens, companies and legal professionals to act with confidence, providing a stable environment to operate in. However in providing legal certainty there is a risk of rigidity, placing the law in such a state that it cannot respond to individual circumstances and perhaps more significantly a state where it cannot evolve to fulfil future demands. Thus a degree of flexibility is also crucial. Decisions made in higher courts have the prospect of being able to not agree with precedents acutely, if tools such as statutory interpretation are utilised.

The doctrine of precedent will be evaluated against these criteria throughout this work and an evaluation made as to whether a good balance is achieved both in theory and in practice. In order to understand how the concepts of legal flexibility and certainty are affected by the doctrine of precedent a solid understanding of how it operates in both theory and practice is required. This work will proceed on this basis, describing the doctrine, highlighting its strengths and weaknesses and assessing how it supports or undermines legal flexibility and certainty through each aspect.

Simplistically the doctrine of judicial precedent is concerned with the value and importance of case law. It has already been established that the common law system has, and still is, evolved through experience, through decisions in individual cases. The principle that underpins the notion of precedent is utterly logical, where a point has arisen and been decided upon before it is sensible to look to that decision for guidance. This places a lay person's definition on the concept of precedent, the idea that what has been done before should be done again.

At this level precedent provides certainty, where prior examples are followed case results can be predicted. The legal situation however is far more intricate. In order to form examples and therefore precedent to be truly useful principles must be derived from them. Where underpinning, generic principles can be identified precedent can provide a greater level of certainty and greater guidance in future cases. An example may be made of Donoghue v Stevenson1 whereby the concept of a 'duty of care' was created, a concept that is fundamental to the law of negligence.

Practitioners and academics may speculate as to a legal principle that is developing but it takes a specific case to settle the issue (Holland and Webb, 1999), to provide certainty. However, significantly this removes a degree of flexibility from the system as it relies on cases being brought before an appropriate court for the law to progress, for precedent to evolve. Conversely, establishing legal principles from cases allows similar decisions to be reached on issues of law even where the facts of a particular case are not similar; this adds a degree of flexibility.

There is an important addition to the ideas enunciated thus far that is specific to the doctrine of judicial precedent, in a legal context precedent can be binding on later courts. It is not merely considered good practice to follow prior decisions in some circumstances it is necessary. This is known as the principle of stare decisis, translated to mean 'let the decision stand', in practice this refers to where a decision is made that decision must be followed in courts of an equal or lower status.

The decision in a legal context refers to the reasoning behind a result as opposed to the result itself. Theoretically this promotes legal certainty as it places an obligation on lower courts to follow decisions made in higher courts in similar cases. Similarity does not just refer to factually similar cases, but cases where similar principles are at issue. The concept of similarity is flexible or can perhaps be more accurately described as ambiguous.

Indeed Holland and Web (1999) argue that this facilitates the "lifeblood of a lawyer", the ability to argue and reason principles to apply their meaning to cases in a flexible manner. This supports the concept that legal reasoning is not an exact science, that precedent is not an exact science but that it is an art form that is open to a degree of interpretation. This may not be a direct result of the rules of precedent but a factor inherent in the common law legal system, despite this it allows precedent to be applied in a flexible manner.