Judicial Precedent A Practice Of Courts

"In Law, a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a Judge may choose to give it, thereby greatly simplifying his task of doing as he pleases. As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire. Invention of the precedent elevates the trial-at-law from the low estate of a fortuitous ordeal to the noble attitude of a dirigible arbitrament." [1] 

The doctrine of judicial precedent is certainly at the heart of the common law system of rights and duties. The doctrine can be defined as that legal case establishing a principle that a court or other judicial body considers when deciding subsequent cases with similar issues or facts. However, the extent to which the doctrine is binding on a particular judge falls to be decided with reference to the hierarchy of the courts. This law tradition is based on stare decisis, which in other words, means "let the decision stand". [2] It’s precisely this tradition which impels a court to look for guidance on how to adjudicate upon a case now before it based on decisions previously rendered. There are generally of two types of precedents, binding and persuasive. A binding or authoritative precedent is one which must be followed while a persuasive precedent is not mandatory but is still worth consideration. [3] 

Since precedents are binding based on the level of the court in which the decision was reached it’s important to understand the hierarchy of the courts. The general idea is that decisions made in the superior courts are binding on lower courts.

The highest court of appeal is now the Supreme Court. The decisions emanating from the Lords are binding [4] and must be adhered to by courts lower in hierarchy. The decisions of the House of Lords [5] upon questions of law are normally considered by the House to be binding upon itself, [6] but because too rigid adherence to precedent may lead to injustice in a particular case and unduly restrict the proper development of the law the House will depart from a previous decision when it appears right to do so, [7] Previously the House of Lords was bound to follow all its previous decisions Tramways Co v. London City Council [8] , Lord Gardiner announced in a statement known as the Practice Statement that the House of Lords would no longer be 'absolutely bound by its own precedents.' [9] 

Even the decision of courts of justice when exactly in point with a case before the court are generally held to have a binding authority, as well to keep the degree of justice even and stable because the law in that case has been solemnly declared and determined. Precedents must be founded in reason, justice in order to be render valid. Must have been made upon argument, and be the solemn decision of the court; and in order to give them binding effect there must be a current of decisions. However, according to Lord Talbot, it is "much better to stick to the known general rules than to follow any one particular precedent which may be founded on reason unknown to us." Blackstone says, that a former decision is in general to be followed unless "manifestly absurd or unjust," and, in the latter case, it’s declared when overruled not that the former sentence was bad law, but that it was not law.

However, the question on judicial precedent being the binding precedent has to be clearly differentiated. Binding precedent confirms to the hierarchy of courts whereas mere precedent could be persuasive. [10] It was recognised that in its application to matters of ritual and ceremonial some measure of flexibility was justified. Decisions, even of the highest court, are likely to be overruled where there is fresh light on facts which were not considered by the tribunal on the previous occasion, and even where there is no such fresh light the tribunal is at liberty to examine the reasons upon which the decisions rest and to give effect to its own view of the law [11] . Today, this doctrine is in the danger of fading off due to the departure mechanism being a tool for judges to move away from the precedent created by higher courts or the same capacity courts. Whilst such endeavour, the question arises does this leads to judges to be a "judicial legislator" i.e. to make law. This discretion apparently is argued as too liberal because the traditional belief that judge should only interpret statutes and higher court's decision by looking into the "ratio decidendi" and "obiter dicta" is being defeated.

The doctrine of "stare decisis" would sufficiently mean all cases which have similar facts that shall be treated alike simply for the reason for the degree of certainty and in order to avoid injustice at the same time restricts unduly development of law to some extent. [12] What constitutes binding precedent is the ratio decidendi which is the material significant decision. However The House of Lords is entitled to question or limit a previous ratio decidendi of the House, (i) where it is obscure; (ii) where it is out of line with other authorities or established principles; and (iii) where it is much wider than was necessary for the decision. [13] Where there is no visible ratio decidendi common to the majority of the House of Lords the reasoning accepted in a long line of cases before that decision will be adopted by the House. [14] Where too rigid an adherence to precedent may lead to injustice in a particular case and an undue restriction of the proper development of the law, the House of Lords may depart from its previous decisions when it appears right to do so. [15] Ratio decidendi is not like the obiter dicta which are merely the significant opinion or view provided by either agreeing or disagreeing with judges in the higher court. This argument today is being cut down for the reason of the attitude of judges i.e. the school of thought of declaratory theory and judge made law theory.

Judges who stick on to the declaratory theory of law where the allegiance owed to the parliament which is considered to be the most supreme law making body based on doctrine of parliamentary supremacy and concept of separation of powers, judges consider themselves to be just interpretative. Those who belonged to this school of thought undoubtedly LD Simmonds, LD Hodson and LD Salmon who do not give room for judicial creativity and label themselves as passivists judge.

On the contrary, some judges do create reasons and do not want to mechanically follow higher court's decision by creating new law or expanding the old law. The question is who lingers on these arguments without doubt is Lord Denning or Lord Woolf, who have this argument that they are activist judge whom I would boldly say has created many rooms on judicial creativity. One of the case that ought to be highly praised by Lord Denning was Central London Property Trust v High Trees House (add the foot note here the citation of the case) where he championed the doctrine of Promissory Estoppel and also in the case of BRB v Harington( add footnote here of the case i.e the citation of the case) that an occupier owes a duty of care to non-visitors based on grounds of common humanity which later this principle was formed in the Occupier's Liability Act’ 1984. This evidently shows that activist’s judges have prompted parliament to enact law while the conservative beliefs would be enactment of Parliament prompted judges to make law.

To settle these two positions could be an attempt which would be beyond imagination because this is two different schools of thoughts. It can be easily concluded that it is the attitude of judges respectively that brings about the judge made law theory on their own whims and fancies probably out of necessity and for want of justice. However, the departing tools of the exception as laid out by Lord Gardiner in Practice Statement 1966 for the HOL and the Young v Bristol Aeroplane (add footnote here the citation of the case) exception has seeped into the system besides the distinguishing factors as what Prof. M. Zander profoundly said "distinguishing the indistinguishable" to some extent.

Hence, there seems to be too many opinions on whether this doctrine of binding precedent is a myth or is it a rule of law that all judges should adapt the "stare decisis" attitude. Prof Glanville Williams found it strange that the authority that precedent is binding them is the normal House of Lords instead of parliamentary authority. This clearly indicates why a judge should follow higher authority's decision besides parliament. Where as Sir Rubert Cross was on the contrary opinion where he indicated that a judge is bound by ratio decidendi. This debate has been going too long. However, there has been no attempt by parliament to put a stop, hinder or prevent that judge made law theory. But whenever lower courts depart from their decision, higher courts are normally reprimanded and admonished upon an appeal either by overruling or reversing which is best illustrated when Murphy v Brentwood District Council (put footnote of the citation) overruled Anns v Merton (put footnote of the citation of the case), Anderton v Ryan (put footnote of the citation) being overruled by R v Shivpuri (put footnote of the citation), and DPP v Lynch (put footnote as case citation) being overruled by R v Harvey (put foot as case citation). [16] 

The question as to what extent the doctrine of binding precedent allows judges to make law [17] would be to be accurately stated depends on other factors such as some judges would avoid the control of an unwelcome precedent. Some judges do not believe in the fairy tales of cases. Some judges believe that adjudication must be settled according to the growth of time and the sophistication of today's world. Some judges also believes that "nakedly usurping the function of parliament" [18] and as what Lord Denning identified his position that at times judges ought to "fill up the gaps" that was unintended by parliament.

By looking at the above argument, in a way we can say that the doctrine of judicial precedent helps judges to develop law without limits rather than allowing judges to make law but, on the other hand another stand would be about the various departure mechanisms available to the judge although each mechanism can only be exercised with their respective limitations which again were created by judges having prompted judges to make law rather. However, in today’s time the doctrine of judicial precedent is in the danger of fading off due to the departure mechanism being a tool for judges to move away from the precedent created by higher courts or the same capacity courts. Whilst such endeavor, the question arises does this leads to judges to be a "judicial legislator".

After this whole argument as a conclusion I believe Judicial Precedent is best understood as a practice of the courts and not as a set of binding rules. As a practice it could be refined or changed by the courts as they wish.