The System of Judicial Precedence

In England, we operate a system where there are two types of law, the first is statute law. This is where parliament has passed an act and has made a written law that must be adhered to. This is inline with the principle of parliamentary supremacy. The second is common law and to understand what judicial precedence and ratio decidendi are, we must study this area of the legal system and it is this system that is the predominant system of law in England.

Common law is where judges decide cases by looking at previous decisions that are sufficiently similar and following the decision in that case, this is called stare rationibus decidendi, usually referred to as stare decisis, which means 'Let the decision stand'. What it means is that if a court of equal or higher standing makes a decision then all lower courts are bound by that decision. A precedent in law is very much the same as it is in layman's terms, it means when a case is decided on the basis of an earlier court, it is called a precedent. In law, the 'decision' is not only that x won and y lost but it is also the reasoning behind it.

This reasoning, which is referred to as the ratio decidendi, is how the judge relates the material facts to the proposition of law. The material facts of a case are the facts that were important for the judge in making a decision in the case. To fully look at how the system of judicial precedence works, we must first look at the structure of the English courts. The diagram below illustrates the court structure for civil jurisdiction: As you can see the House of Lords is the highest court in the land and ultimately they decide on any cases that cannot be decided on in lower courts.

The structure of the courts in criminal jurisdiction is similar although there are some differences as illustrated below: All courts of equal or lower standing are bound by the decisions of the higher court; this is a general rule however there are certain exceptions. The House of Lords is no longer bound by its own decisions, this came about in 1966 when the Judicial Committee of the House of Lords issued the Practice Statement. However they will very rarely overturn one of there own decisions, in fact in 1988 Lord Goff stated that they would only overturn decisions for 2 reasons.

The first that they felt free to depart from both the reasoning and the decision of the earlier decision, and second, that the overruling would affect the present case and would not be of mere academic interest. The court of appeals can also deviate from its own precedence however this is extremely rare and is still frowned upon by the House of Lords. There are 3 reasons why they can do this; the first is called per incuriam this means that there was a significant oversight that affected the decision, not that the court simply got the decision wrong but that it did so because they overlooked a vital statute.

The second reason is the 'lapsed rule', this simply means that the previous decision was valid when it was made but has simply been outdated. The final reason is if there are conflicting decisions within the Court of Appeals own decisions, this could occur if two similar cases were being tried at the same time but different verdicts were reached. This would mean that the next time a similar case came to be heard there would be two conflicting precedents from which to choose. Therefore one of those decisions would have to be overruled.

The debate as to whether any court should be allowed to overturn its own decision still continues and it is an argument between certainty & consistency and desire to have flexibility in the law in order to keep it up to date. In order to evaluate whether the system properly it is only right that we look at the alternative type of system. Continental Europe use a very different system for deciding cases, they use a civil law system. This system uses a series of statutes to determine what the law 'is'.

In this system there is no precedence and it is left to the judge to decide on the case in question relative to the Civil Code of the land. This means that the judge has a lot more power over the decision and leads to accusatorial battles in the court room between lawyers. This court system no doubt has a lot more flexibility in it as every case is judged on its own merit and the verdict is given on the facts of the case however, it is argued that it is also very inconsistent, as the verdict is completely dependent on the judges interpretation of the facts and his/hers personal viewpoint.

So does the system of judicial precedence work or is it too rigid in its approach? Certainly the common law system can cause trouble when it becomes outdated and many do argue that there is not enough flexibility in the system as you must go up through the hierarchical system all the way to the House of Lords in order to change a precedent and even then it is rare that they will do so. However there is a leap-frogging procedure, where a civil case can go straight to the House of Lords and skip the Court of Appeals.

There is also a reassuring degree of certainty in the stare decisis. Case law is often described as experience and it does cover a much wider range of eventualities than civil law, however it does lack the structure and order of a codified system. Both systems seem to work for their respective users, and although civil law seems to have a greater degree of flexibility, the common law system does seem to have the more consistency and relies less on an individual judge and more on the system. Justice however seems to be served by both equally well.