Essay on English legal system
1). Explain the system of the practice statement on judicial precedent (1966).Which types of cases did it identify as requiring special consideration? In what circumstances will the house of lords/supreme court depart from its own earlier decision?
Precedent is considered to be a mechanism through which all the judges in the common law countries, for instance, United States, Singapore, Sri Lanka and Australia, feature their own law-making role. Besides, it is a constraint on the role.
The doctrine of judicial precedent is formed on the principle of stare decisis, meaning that it is important to treat all the common cases in the same way. Hence, the general rule is that all courts are bound to follow the decisions that are made by the courts higher than themselves in their hierarchy. Moreover, the appellate courts are bound by their previously made decisions.
The Ratio Decidendi (that reasons for deciding) is the so called binding part of a decision of the judge but how judges interpret this can be different thus changing the impact; it can have on future decisions.
It should be mentioned that the distinctive aspect of the common law practice is that all the judges have sometimes to follow a relevant precedent, in case even when they don’t agree with it. Hence, the practice implies simultaneously that every past decision of a superior court has made law, but that each present decision features the pre-existing law. As a result, these contradictory implications lead to a unique combination of stability and flexibility.
Furthermore, in general, the appeal courts are bound by their own private decisions. However, in cases when the judge claims that the material facts of any case that are in front of him are different from the material facts of the case containing the precedent, it is obviously that he is not bound by the precedent.
2) To what extend does the court of appeal bind itself?
As we know, there is an old tradition in the Courts of law, according to which the Courts of law that are lower courts should be obviously bound by the superior courts. So, it is a doctrine of stare decisis, or it may be also called as a binding precedent, ensuring a relatively uniform approach to the law despite the cases that come before different judges.
Entered into the force, the solution acquires the properties of irrefutable, exclusivity and commitment. In addition, the cogency solution is that it can be neither disputed, nor appealed. The Court of First Instance after the decision enters into force shall not be entitled to receive from anyone else had a complaint against this decision, and the Court of Cassation to verify these claims. In exceptional cases, the wrong decision, which came into force, may be reviewed by the means of the judicial review as well as several new circumstances.
It is also important to mention that the made decision is the obligation to all featuring that case. However, an exception can be made only for those who did not participate in the process, but whose rights are affected by the decision. The law gives that person the right to protect his or her interests.
Meanwhile, the general position is that a court is not bound by its previous decisions, despite the fact it would even stray from it. Hence, we may think that this may give litigants the sureness that law would be uniformly applied, however giving the court a form of flexibility, straying from its findings when needed.
3) Court of appeal decision 1 is in conflict with a particular house of lords/supreme court decision. A subsequent court of appeal cannot reasonably distinguish decision 1 from the facts before it. Should it follow decision 1?
In cases where the previous decisions of the court of appeal conflict, as in our case, the court is not bound to follow the previous decisions
In case the judge claims that the material facts of any case that are in front of him are different from the material facts of the case containing the precedent, it is obviously that he is not bound by the precedent. So, the decision that is not approved by the Court of Appeal should go back to the very beginning and hence, the decision 1 should be followed because there are no reasons that are proved to be against.
4) When is high court bound by its own decisions? When is it not?
It is a well known fact that in the English courts system, the House of Lords is regarded as the pinnacle of the whole existing court system. Hence, it is the highest court. In addition, the precedents of the House of Lords bind on the lower courts, for example, the Court of Appeal or several other lower courts. The precedents are not binding on the House of Lords’ judges and in addition, the precedents are not binding on it self.
The Court of Appeal is bound to follow the previously held decisions. There exist only three exceptions to this rule. These exceptions are:
Firstly, in cases where the previous decisions of the court of appeal conflict, as in our case.
Secondly, where there is a decision that hasn’t been expressly over-ruled and as a result, cannot be combined with a subsequent decision of the Lords.
And finally, there are cases when a decision was made ‘per incuriam’.
5) What Has Been The Effect Of Human Rights Act 1998 On The Doctrine Of Precedent In English Law?
The Act 1998 makes available in the UK courts a remedy for the breach of a Convention right, not featuring the need in going to the European Court of Human Rights in Strasbourg. Thus, before 1898 the House Of Lords overruled it’s previously made decisions.
Hence, the Human Rights Act 1998 is the more recent legislation, and secondly, protected status, according to which, if national legislation is in conflict with EU legislation, it is legislation of the European Union.
6) What are the arguments for and against a doctrine of binding precedents?
It is a well-known fact that a doctrine of binding precedents features both advantages and disadvantages. Let’s regard the difficulties:
First of all, it can cause the real injustice. As a result, the overruling of a previous case can lead to the injustice to those having ordered their affairs within the reliance on it. Hence,
precedent can produce justice in a particular case; however, it may cause injustice in most of the cases. I would like to mention that it may seem rather undesirable to treat claimants unjustly only because one particular binding case had caused an unjust rule.
The other disadvantage is the fact that it can ensure the judge’s impartiality and the fact that it features bulk and complexity.
The justice’s interests require impartiality from every judge as well. Hence, we can assure this by binding precedent’s existence, which is to be followed unless it becomes distinguishable. In addition, trying to distinguish an indistinguishable case, the attempts are surely to be obvious.
It should be also mentioned that a doctrine of binding precedents greatly limits the general development of the law.
However there are some positive aspects that should not be omitted. Firstly, it is the flexibility. Hence, we all know that the judge can not always be free in case we have a binding precedent. Yes, unless it is distinguished he or she has to follow it. There also times the judge dislikes it and considers it to be bad law, however, he must follow it. In that case his discretion is limited and what’s more, the alleged flexibility of this case law is likely to be rigidity.
Anyway, we should also remember that one of its positive aspects is the likely certainty in the law. As foe me, I regard this issue as one of the most important advantage that is claimed for this doctrine.
Secondly, it may feature a chance to develop the law and can help to avoid a number of mistakes.
