Introduction as Darcy v Allein[1], Tulk v

Introduction

Judicial
precedent doctrine is a source of law whereby decision made in the past are
used as guides for reference in future cases. The judicial precedent is based
on the principle of stare decisis et non quieta movere however, today, it is
more commonly known as stare decisis. This
principle stipulates that what has been decided must be followed by when making
judgments. Thus, if a case has been undertaken and the outcome decided on by
the judges, all future cases where similar content occurs, the first judgement
will become supreme hence determine the outcome in all other similar cases.
This is evident in the case law such as Darcy v Allein1, Tulk v
Moxhay2, Carlill v Carbolic Smoke Ball Company3and Donoghue v Stevenson.4 In
all this case, the judges made landmark decisions thus based on common law
create precedents hence establish legal principles and in effect influence the
interpretation of common laws.5Leading
cases are widely used in the UK in determining current similar cases.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

The
doctrine of judicial precedent aids later cases in setting predetermined
decisions, which, some individuals say is good, and others, a legal setback.
Thus, this study will strive to establish the advantages and disadvantages of
judicial precedents. The first part of this essay will examine and begin by
looking at the advantages than the disadvantages followed by highlighting the
position of judicial precedent in the English legal system.

Advantages of judicial precedent

Firstly,
judicial precedents provide predictability in term of decision for similar
cases thus, judgment held is consistent throughout the legal systems. This
creates fairness since similar cases a held the same hence, the legal approach
to handling cases can be predetermined based on other similar cases held in the
past thus saves time and money. This is evident in the case law Hunter and
Others v Canary Wharf Ltd and London Dockland Development Corporation6 which, relied on the judge’s ruling in
the case law Khorasandjian v Bush7 and this outcome of this case also
relied on the judge’s ruling of the case law Malone v Laskey8
where a landmark decision was made. This type of legal system creates
consistency and is a deterrent when it comes to the criminal law since those
who want to pursue illegal activities will know what happens to them based on
already held cases.9

Case
outcomes that are consistent in terms of how the judges make their ruling are a
fair way of applying the law to similar cases. Judicial precedence thus enables
judges to have proper guidance on how to handle cases without steering away
because of stipulated legal precedence laid down.10Cases of
mistakes happening are reduced drastically with the use of judicial precedents
since similar cases have already by handled and deliberated successfully.
Chances of contested court verdict are reduced as evident in the case law
Kadhim v Brent London Borough Council11where case
law was used to support the judge’s ruling. This is vital in ensuring the
courts are perceived to uphold honesty in the legal system. If courts are able
to have two separate ruling for similar cases, this leads to injustices which
then leads to a legal system which is not perceived to be fair. Hence, it is
unlikely for judges to be biased on cases, which have judicial precedence.12

Since
jurisdiction precedence already establish how similar cases are held in the
courtroom, it’s then possible for them to build on them and further develop the
laws. This is mostly observed when a new situation arises which the law has not
catered for, thus the need to create new laws. In this case, a judge could rely
on the previous ruling as a guide in making an appropriate based on the new
evidence. This was seen in criminal cases involving murder where the court had
a jurisdiction precedence but when a person who is mentally ill committed the
murder, the court had to adjust the law to suit that situation.

Disadvantages of jurisdiction precedence

Jurisdiction
precedence is not without its disadvantages firstly, is the restriction it
places in the law13and
in today’s society, changes occur all the time hence the need to make laws
which are relevant. The utilisation of jurisdiction precedence in many
countries introduces a legal system that is rigid thus, the rules that were
applicable even in 1920s are still used today whilst they have become outdated
hence cases moving to an appeal court for new rules to apply. Changes to the
law made in the court of appeal shows that the legalities have not developed at
pace with society and are only changed when higher legal authority meets an
urgent situation.

Secondly,
jurisdiction precedent creates volume and complexity in the legal system14since
rulings especially those sent to the court of appeal may consist of different
judgments which differ hence time taking to establish the ratio decidendi. When
cases are taken to the court of appeals, the earlier ruling made in the lower
court based on jurisdiction precedent are able to create outrage especially for
those who believed in the presumed rule of law. Hence, making a ruling based on
the doctrine of judicial precedent may be perceived to create weak rulings if
cases can be overturned in higher courts. There are other bodies such as the
human rights act 1998 that, by the
very existence lessen the importance of the doctrine of judicial precedent and
is evident by the case law Culnane v Morris & Anor15
where the judges had to factor in the content of the European convention of
human rights16 in
order to make a ruling. This meant that if the court had followed the doctrine
of jurisdiction precedent they would have followed the ruling in the case law
of Plummer v Charman17
however since the ruling made in this case was not in line with the European
convention of human rights it would not be relevant in the Culnane v Morris
& Anor18
case law19.

Thirdly,
the doctrine of judicial precedent has a retrospective effect in terms of going
back to an earlier court ruling in order to handle a case effectively and this
is counterproductive in comes to the criminal law since an offence could be
created by the judgement itself and in statutory law, the opposite applies.

Judicial precedent in the English system

The
doctrine of judicial precedent has been practised for a long time in the UK and
in the periods 1898-1966 the House of Lords in the UK had to rely on a decision
made earlier which was vital in ensuring held cases were consistent in terms of
their verdicts.20A
relevant case law is the London Street Tramways v London County Council21 and even at this time, the judges
displayed their displeasure in the doctrine of judicial precedent since it
hindered the development of law.22However,
where there have been ruling considered unjust, the court may depart from
earlier decisions. This was evident from the case law R v Caldwell23where
Caldwell was terminated and once got set fire to the hotel after drinking with
the view of burning the place.in the case, the objective test was not taken
into consideration while at the case law R v G24 it was applied in this case. This was
vital for the House of Lords who deliberately chose to depart from the doctrine
of judicial precedent when the circumstances demanded.

In the
case law, Elliot v C25the
UK legal system has found difficulties in applying the doctrine of judicial
precedent since in this case a fourteen-old girl with learning difficulties set
fire to a shed belonging to their neighbours. The judges held that she was
unaware of the dangers however on appeal the ruling of the case law R v
Caldwell26and
the R v G was applied.27This
becomes a problem for the judges since the case touches on both cases which are
the same but fundamentally different.

In the
United Kingdom, the courts of appeal, which are a lower court to the House of
Lords, have to follow any decision held by the upper house. This was challenged
by the court of appeal and is evident in the case law legality as seen in the
case law Broome v Cassell28however;
this did now work since the House of Lords disallowed their attempt.29The
court of appeal also has to stand by the verdict in the cases held in the
courts and this is evident in the case law Young v Bristol Aeroplane Company
Ltd.30

The
application of judicial precedent in the United Kingdom is seen as both
positive and negative to the countries legal system even if it has been
referred to as a fetter on the courts, however; their methodological
application gives the system consistency. A relevant case law is the London
Street Tramways v London County31whereby
the House of Lords stated that confidence in the law remained supreme over
chances that unjust choices will result from past decisions.

Conclusion

Judicial
precedent doctrine is a basis of law whereby decision made in the past are used
as guides for reference in future cases. The judicial precedent is based on the
principle of stare decisis et non
quieta movere, however, today it
is more commonly known as stare decisis

Judicial
precedents provide predictability in term of decision for similar cases thus,
judgment held is consistent throughout the legal systems. This creates fairness
since similar cases a held the same hence legal approach to handling cases can
be predetermined based on other similar cases held in the past thus saves time
and money

The
doctrine of Jurisdiction precedent creates volume and complexity in the legal
system as well as rigid. The doctrine of judicial precedent has been practised
for a long time in the UK and in the periods 1898-1966 the House of Lords in
the UK were had to rely on a decision made earlier which was vital in ensuring
held cases were consistent in terms of their verdicts.

 

 

x

Hi!
I'm Ethel!

Would you like to get a custom essay? How about receiving a customized one?

Check it out