The Theme Of Doctrine Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Judicial precedent refers to the idea that all lower courts are bound by Higher courts in order to produce consistent and analogous decisions. Due to the development of laws and advent of important legislations, e.g. Human Rights Act 1998, question as to whether judges play a vital role in making laws or not came forth. The arguments for and against the idea involves the "declaratory theory" of William Blackstone where he simply stated that judges do not create laws but only discover and apply them. This research will concentrate on this theory and will try to explore the relevant debates revolving around it.

Judges play a vital role in judicial system. There is a precedent which is called judicial precedent followed by the judges. The operation of precedent sometimes faced some problems; judges break the precedent in order to do right and justice.

The fundamental constitutional principle of the separation of powers as asserted by the French philosopher Montesquieu provides that the power of the state, that is executive, legislature and judiciary are to be exercised separately. Functions should not be concentrated in the same hand. The English constitutional principle known as parliamentary supremacy, provides that parliament is supreme law making authority. As explained by the legal philosopher A.V Dicey ‘no person or body may question the validity of an Act of parliament and therefore, the constitutional role of the judiciary is to apply law only not to make any.

Judges are not directly expected to make law. Their main function is to interpret the statute. However while interpreting the court follows the rules which are different ,such as literal rule (Which provides the ordinary or everyday meaning of the word- Fisher v bell [1] ) ,golden rule (which provides modification of wards when absurd - Grey v Pearson [2] ) .Mischief rule (which provides that for what reason parliament adopted the remedy – smith v Hughes [3] ) . Apart from these rules court may use purposive approach and unified contextual approach. Moreover, court may look into the Hansard as an aid of interpretation (Pepper v Hart [4] ). Under these rules the court can easily recognize their limitation .

Lord Easher in R v Judges of the city of the London court stated that if the words of an act are clear judges must use it even if they lead to manifest absurdity.

Traditionally, it seems that judges have seen themselves as declaring and finding law rather than creating law .They frequently state that law making is the prerogative of Parliament, there is some areas they use to make law. The doctrine of binding precedent requires that judges will seek the principle underlying the precedent in a particular area and will try to fit the facts of the case within the principle .Where precedents do not break and judges nevertheless have to make the decision. They cannot easily say that the law is not clear and refer it back to the parliament. (Airedale NHS Trust V bland)

If we see the history, a great amount of law is and always has been case law, i.c. those were made by judicial decisions, e.g. Contact and Tort laws .In some context , there might be conflicting precedents , it makes the judges to avoid an undesirable precedent. In such case, it can be said that judges do have the discretion and to some extent they do make law. It is widely criticized that judges are acting like legislators when they use their discretion as to the outcome of a case as they as supposedly creating new law. Professor Ronald Dworkin terms this process as ‘interpretation’. In here he terms this as strong positivism, conventionalism. He says that judges are not using their discretion in giving judgment but are only pointing out laws that already existed though not visible. However, Dworkin’s approach is criticised as being unrealistic as many believe that judges take a pragmatic approach, i.e looking more at the fact of the case than the principles.

The theme of Doctrine of binding of precedent was shown by Sir Rupert Cross. He says, "All courts must consider relevant case laws. Secondly, lower courts must follow the decisions of the courts above them in the hierarchy . Lastly, judges of the appellate courts are usually bound to follow their previous decisions. The summery of the doctrine is that the decisions of higher courts bind the lower courts and the like cases are to be treated as well.

The operation of precedent faced problem in case of R v James and Karimi [5] . The court of appeal decided to follow the precedent set out in the decision of Privy Council in Holley rather than House of Lords judgment given in Smith (Morgan James). CA acknowledged that this went against the doctrine of judicial precedent; it gave various justifications for treating this as an exceptional case for which established rules should not apply. In the case James and Karimi suggested that it was the law lords who have altered the established approach to precedents as most of the judges in Holley were from the House of Lords. The lower courts would have no clear principle as which court they should follow. Though such radical steps may be announced as ‘exceptional ‘but one has to agree that it has changed the usual way of looking at the judicial precedent. Sometimes judges have to overlook the precedent in case of doing justice . Lord Wolf ; Chief justice noted in R v Simpson [6] that the rules of judicial precedent must be able to develop in order to do justice and the scenario of James and Karimi is like that.

Apart from cases concerning Europe law , the HL is the Highest appeal court on civil and criminal matters and all other courts are bound by it. It seems that, traditionally, it was bound by its own decisions. However, in 1996, the HL issued a statement called "Practice Statement "which stated that House can move away from the previous decision when it appears right to so ". A major case R v R based on following the 1996 practice statement in which it was held that rape within marriage is a crime, changing a principle which stood for countries.

It would not be wrong to say that all law is judge-made, since the function of judges is to interpret the law by reference to statutes and the common law and equity. It is stressed that judges do not make the law but it is an interpretation of the statutes etc.

Most of the substantive law in the English Legal System is creation of the judiciary through the application and development of the case law and precedents. For example the bulk of the tort, contract, murder and common assault are the product of the system and not the Parliament.

The judges are bound to follow earlier cases and this doctrine of binding precedents in Latin is termed stare decisis and is said that the principle of deciding like cases alike makes for certainty and security in the decision.

The judgment can be quite lengthy but the principle behind the case may in some instances be reduced to simple sentence and this principle is the authoritative part of the judgment and is called the ratio decidendi (or, in English, the "reason for the decision"). For example, the famous case of Donoghue v. Stevenson [7] takes up many pages of argument and counter-argument in the House of Lords, but the ratio decidendi may be stated to be "where a manufacturer of goods supplies them to the ultimate consumer, he is under a duty of care in negligence to see that the ultimate consumer is not harmed by the products he puts up". It could be argued that Lord Atkin, who formulated the ratio of the case, was creating new law by introducing the modern law of negligence, but in theory he was only stating the law as it was and he regarded himself bound by it.

The judge will generally, however, have to extract the ratio decidendi himself from previous cases, and consequently he can indirectly change the law. Lord Denning summed it up quite well when he said "Judges do change the law, but it would be heresy to say so", [8] 

In judgment there would obviously be other matters upon which the judge would have referred to or made comments, expressed his opinion and this is called the "obiter dicta" ("said by the way"). They are persuasive precedents rather than binding precedents, and the weight attached to them will depend on the quality of the judge or the court - e.g. the House of Lords' judges, of course, have great weight. These obiter dicta have allowed judges to fill gaps in the law, for example the development of liability for negligent misstatements resulting in pure economic loss.

The system of stare decisis is based upon the hierarchy of courts, so that a precedent can be overruled and rendered void by a superior court. For example the House of Lords (Supreme Court) may overrule decisions of the Court of Appeal and all other inferior courts. But the tendency is for judges not to overrule cases, since to do so would be to hamper the search for certainty in the law. As mentioned the application of precedents are based on the hierarchy of the courts are, that is, High Court is bound by the Court of Appeal; Court of Appeal is bound by the House of Lords (Supreme Court),House of Lords (Supreme court) is not bound, since 1966, by its own previous decisions, High Court decisions are bound on lower courts but not on other High Court judges, Divisional courts are bound by their own previous decisions, lower courts are bound by the superior courts.

There are, sometimes, instances where a decision has been delivered by a lower court (Court of Appeal) that is in conflict with the higher court’s (House of Lord) decision in ignorance of the higher courts decision and such a decision would not be authoritative and would fall into Per incurim Rule. Only rarely will courts regard cases as having been decided "per incuriam". In Young v. Bristol Aeroplane Parts [9] it was held that the Court of Appeal need not follow its own decisions where it was decided that the case had been made per incuriam. In Cassell v. Broome [1972], the House of Lords was criticised for deciding a previous case per incuriam (Rookes v. Barnard [10] ), and the House of Lords retorted that the Court of Appeal was not competent to give such "gratuitous" advice to a superior court.

Where there is a conflict of decisions between the Court of Appeal and the House of Lords, the House of Lords (as the superior court) is the most authoritative and will be followed. House of Lord since 1966 are not bound to follow their own previous decisions Schorsch Meir v Henning [11] 

If we look for some discussion about determining the boundaries of judicial making is partly a doctrinal and partly a constitutional question, some broad guidelines, a useful place to start is Loard Scarman’s speech in McLoughlin Appellant v. O’brian .The appeal in this case raised the very question of the relationship between the judiciary and legislature. Lord Scarman argued that the judges had a jurisdiction over a common law that ‘knows no gap’. According to the case, the task of the common law judge is to adopt the principle of the law to allow the judgment to be made on the fact in hand for the help of the creation of new law.

On concluding note it can be said that the judges nowadays are drifting away from their constitutional role by being over dynamic. In spite of having precedent they have to give judgement for fairness or to do justice.