Judicial Precedent As Law

Judicial Precedent Judicial precedent refers to sources of law where past decisions of the judges create law for future judges to follow. This source of law is also known as case law. It is a major source of law both historically and today.

Original Precedent If the point of law in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow. I.e it is an original precedent. If there are no past cases for the judge to base his decision on, he is likely to look at cases which are similar. Could be said that the judge is only declaring what the law is, but is the first time a judge has had to decide it.

Cont.. This view holds that judges do not create law, they merely declare what it has always been. Nowadays it is accepted that judges do have a law-making role in these situations- when a new point has to be decided, the judge is creating new law.

Binding Precedent This is a precedent from an earlier case which must be followed even if the judge in the later case does not agree with the legal principle. A binding precedent is only created when the facts of the second case are sufficiently similar to the original case and the decision was made by a court which is senior to (or in some cases the same level as) the court hearing the later case.

Persuasive Precedent This is a precedent that is not binding on the court, but the judge may consider it and decide that it is the correct principle so he is persuaded that he should follow it.

Precedent and the Hierarchy of the courts. In England and Wales our courts operate a very rigid doctrine of judicial precedent which has the effect that: Every court is bound to follow any decision made by a court above it in the hierarchy. In general, appellate courts are bound by their own past decisions. Hierarchy of courts- created by the judicature Acts 1873/1875.

The European Court of Justice Since 1973 the highest court affecting our legal system is the European Court of Justice. For points of European law, a decision made by this court is binding on all other courts in England and Wales. Important feature of the ECJ is that it is prepared to overrule its own past decisions if necessary. This is in contrast to the more rigid approach of our national courts.

Supreme Court The most senior national court is the Supreme Court. Its decisions bind all other courts in the English legal system. The supreme court is not bound by its own past decisions, although it will generally follow them.

Court of Appeal Bound to follow decisions of the ECJ and the Supreme Court. In addition, they must usually follow past decisions of their own. All other lower courts.

Divisional Courts Bound by the ECJ, Supreme Court and the Court of Appeal. Itself (with some exceptions) All lower courts bound by the divisional court.

Inferior Courts These are the Crown Court and the Magistrates Court. Bound to follow decisions by all higher courts. Unlikely that a decision by an inferior court can create precedent

House of Lords and Judicial precedent The main debate about the House of Lords (now called the Supreme Court) is the extent to which it should follow its own past decisions and ideas on this have changed over the years. From 1898 to 1996 the House of Lords regarded itself as completely bound by its own past decisions unless the decision had been made per incuriam, that is ‘in error’. Idea of error referred only to situations where a decision had been made without considering the effect of a relevant statute.

Cont.. This was not felt to be satisfactory, as the law could not alter to meet changing social conditions, nor could any possible ‘wrong’ decisions be changed by the courts. The only way it could be changed was by Parliament passing an Act.

The Practice Statement It was realised that the House of Lords (Supreme Court) should have more flexibility. Since 1996, the Practice Statement has allowed the House of Lords (Supreme Court) to change the law if it believes that an earlier case was wrongly decided. It has the flexibility to refuse to follow an earlier case when it appears right to do so.

Cont.. Little guidance as when they might overrule. Has been reluctant to use this power. From the Mid -1970s onwards the House of Lords showed more willingness to make use of the Practice Statement.