The Parliament, Judicial Precedent and Statutory Interpretation

There are three sources of Law – The Parliament, Judicial Precedent and Statutory Interpretation. Precedent, as the major source of law, follow the doctrine of ‘Stare Decisis’ which in Latin means ‘the judges are obliged to stand by the precedents established by prior decisions’. In practice, the Appellate Court is generally bound to follow its own previous decisions, and each court is bound to follow the court above it in the hierarchy system. The principle of stare decisis can be divided into two components - binding precedent and persuasive precedent. A binding precedent, also known as mandatory authority or binding authority is a precedent that must be followed by the lower courts under the common law legal systems. It is said to be a distinctive feature of the English legal system and usually created by the Supreme Court of the United Kingdom, which recently took over the judicial functions of the House of Lords. A persuasive precedent also known as persuasive authority acts as a guide for the judge to make decision upon cases in hand. There are quite a number of sources of persuasive precedent such a lower court, statement made in obiter dicta, horizontal courts etc.

In addition to this, the structure of the courts could be briefly explained as: The final appeal in each case to be brought before is the House of Lords, its members being the Law Lords – the most senior judges, and these are known as the Lords of Appeal in Ordinary. Below this is the Court of Appeal, containing two divisions – the civil divisions and the criminal divisions. The Lord Chief Justice is appointed as the head of the judiciary of the criminal divisions, while the president of the civil division is known as the Master of Rolls. All the criminal cases are tried in either the Magistrate Court or the Crown Court whereas all civil cases are tried in either County Court or the High Court. The High Court is divided into division which deals with different types of work - The Queen’s Bench Division which deals with the general civil cases such as libel and contract dispute; Chancery Division which deals with company law cases including bankruptcy and probate and lastly, the Family Division which deals with marriage, divorce etc.

The ratio which creates the precedent is named ‘Ratio Decidendi’, an expression of Latin of ‘the reason for the decision’. English judges often give long judgments; hence the lawyers have to identify the rule laid down in the case. The rule applied here is known as ‘Ratio Decidendi’, where ‘judges are obliged to stand by the precedents announced by the prior decisions’. Besides that, a judgment made is not only based on ‘Ratio Decidendi’, but also on ‘Obiter Dictum’ (Singular) or ‘Obiter Dicta’ (Plural). Wilson and Kenny (2007:21) explains that ‘often in giving judgments a judge will make a statement as to what the law would be in facts similar but not identical to the facts in the case before the court. This statement of law is an Obiter Dictum’. An ‘Obiter Dictum’ is something that is said by the way and does not bind with the later cases as it is not strictly relevant to the issue. However, an Obiter Dictum might as well acts as a persuasive authority in later cases.

The doctrine of precedent is said to be the cornerstone of the development of the common law; A common law is known as the basis of the English Legal System. Initially, it existed as an attempt to create a system under the control of sovereign king. Common law was the developed by judges going around throughout the nation in establishing the King’s peace, as well as solving disputes by applying legal custom which after that became the basis of legal order. This judicial act and development of law greatly influenced the political authority and the law to be known as “common", as it applied to everyone. The common law as can be seen today refers to substantial law and procedural rules that were created by judges through decisions and judgments on specific disputes which they have encountered. Stare decisis is fundamental to the common law, which is the “judge-made law". The relationship between the courts, for example when a court bound by the decision of another court based on the hierarchy system (binding precedent) - develops the common law. This is made possible as the concept of precedent act as the starting point of consideration of the role of judges in the common law system.

In common law system, precedent means something more than that consistency is virtue. Consistency is one of the advantages of binding precedent that can be found along with certainty, efficiency and flexibility. The courts have an obligation to follow the precedent (previous judicial decision) whether or not the court agrees with the reasoning. Judges are on duty to follow binding precedent, but not persuasive precedent. This is because persuasive precedent is a decision from another jurisdiction. For example, the High Court of Australia could be a persuasive authority if the English judges think that the Australian judges have come up with a good solution to a legal problem thus the English judges might apply and adopt the reasoning given by the Australian judges. However, there’s no obligation as to this precedent must be followed. On the other hand, binding precedent must be obliged by the judges no matter what their views are. As mentioned before, binding precedent is based on the principle of stare decisis or the doctrine of binding precedent. Yet, as Vandevelde (1996: 35) argues, the principal of stare decisis is paradoxical: “The doctrine of stare decisis rests on paradox. A court has the power to decide only the dispute before it, and the rules announced are binding only like cases…. The paradox is thus that a prior case binds a court, but only if the court decides that the prior case is binding. Lawyers eventually come to an understanding that common law is not set of fixed rules, but rather a process…. The rules are defined as they are applied, and the law is in a constant state of evolution, explication and elaboration."

In addition, the decision of House of Lords for the cases of Zamir v. Secretrary of State for the Home Department [1980] and Khawaja v. Secretary of State for the Home Department and another appeal [1983] showed that House of Lord has overruled its own prior decision. The ability of the House of Lords to “overrule" its own prior decisions also gives the Law Lords the opportunity to review the impact of its decision and, should they deem it necessary and desirable, they can alter or “overrule" the precedent if the impact is found to be negative. This is a rare occurrence, but it has been known to happen, as can be seen in the decision of the House of Lords in the Zamir and Khawaja cases.

Furthermore, the doctrine of precedent is said to be a mysterious process that is capable of accurate analysis. The mysterious process includes the process of identifying the ratio. The ratio here indicates the ratio decidendi, or the reason of the particular decision being made. This can also be defined as the “Judicial Reasoning". Judicial reasoning refers “both to the process of thought by which a judge reaches a conclusion as to the appropriate result in a case, and to the written explanation of that process in a published judgment." No other public decision makers are under such a heavy obligation to explain the reasons for their decisions. Yet the specialized nature of legal language means that the function of public justification is often imperfectly realized, that the explanations are designed to be understood primarily by other judges and by the legal profession in general.

While the published reasons for decision lend themselves to objective analysis, the underlying processes of thought involved in exploring and resolving a legal problem are so complex and variable that neither judges nor writers on jurisprudence have been able to reduce them to an adequate explanatory or prescriptive model. Ideally, the written reasons for judgment not only provide an accurate mirror of the underlying reasoning process, but may actually help to shape it: the task of reducing one’s thinking to writing is itself an aid to thinking, and sometimes a decisive aid. A typical written judgment begins by outlining the facts of the case, and then proceeds to a discursive exploration of the relevant legal doctrines and principles. Implicit in this structure, though rarely spelled out explicitly, is the idea that the final stage in the process of judicial reasoning can be reduced to a syllogism. Moreover, while the syllogistic model might imply that the legal and factual premises can be formulated independently, this is rarely the case. The mental processes of apprehending the facts and formulating the relevant propositions of law unavoidably shape each other.

In the case of Stilk v Myrics and Hartley v Ponsonby, both cases share a common fact but the outcomes, also the decision made was different. Hartley v Ponsonby [1857] is a leading judgment on the subject of consideration in English contract law. The judgment constituted an amendment to the precedent set by Stilk v Myrick [1809] that allowed contractual duties to be considered valid consideration for a future contract if the duties had changed to the extent that the original contract is considered discharged. Plus, the judge decided that although Stilk v Myrick [1809] EWHC KB J58 said that sailors were not entitled to additional pay for fulfilling a duty already required by an existing contract, they were in this case. The desertion of so many crewmen (compared to the desertion of two crewmen in Stilk v Myrick) changed the nature of the remaining sailors duties to the point where the contract could be considered discharged. As such the offer by Ponsonby to pay the crew to sail back and the acceptance by the crew could be considered an entirely new contract, providing valid consideration.

In conclusion, the doctrine of precedent is indeed the cornerstone of the development of the common law although it certainly takes time, a slow process as disputes might occurred in certain circumstances and hence the reconciliation, to a certain extent. The secrecy of judicial deliberations is an example of the tactics used by the judiciary to conceal the extent to which such deliberations resemble those of ordinary people attempting to resolve disputes in circumstances of uncertainty.