Doctrine of Precedence – a little bit of revision

Hi All,

As promised Ill try to consistently post some questions that I find. Its been a little while since a DOP question so here goes!

Outline the operation of the doctrine of precedent.

The courts are able to establish common law through application of the doctrine of precedent. The doctrine of precedent operates on the principle of stare decisis (to stand by a previous decision). This means that a similar outcome is applied to cases of similar facts. New precedents are created through novel cases (where no legislation exists) and also through statutory interpretation (where the meaning of legislation is unclear).

The nature of precedents depends upon which court it was established in. Binding precedents are created in superior courts of record and must be adhered to by all lower courts. In contrast persuasive precedents do not have to be followed but exist to provide legal guidance, these precedents comprise of the ratio decidendi (legal reasoning) of lower courts, courts of equal standings, from other state hierarchies (NSW), from other common law countries (South Africa) and also of obiter dictum (things said along the way) which act to provide insight and guidance from learned judges on hypothetical situations. The doctrine ensures consistency and fairness between like cases. Precedents are found in law reports that include the facts of the case, the decision, the ratio decidendi (legal reasoning) and obiter dicta.

Furthermore, the doctrine of precedent provides a number of means of flexibility to enable evolution in common law and prevent any miscarriages of justice. Distinguishing has been the most effective means to aid in evolution as it establishes new common law if it is deemed the facts of a case are sufficiently different that an injustice would occur through the application of the precedent. In addition the method of reversing was demonstrated in the Studded Belt Case 1993 where the case was heard on appeal and the judge in the Supreme court determined that the case had been wrongfully decided in the magistrates court and according ‘reversed’ the previous decision replacing the old ratio decidendi with the new legal reasoning. Finally, the means of overruling and disapproving also aid in the flexibility of the doctrine of precedent.

(judging by length its a big 6 marker but also too small for an 8)

Keep Studying Hard!

JB

Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

The next question I will do in a few parts.

Final Part:

Explain the operation of the Doctrine of Precedent and evaluate two strengths of this method of law-making.

A key criticism is that the Doctrine of Precedent creates rigidity; however, there are four mechanisms in place to keep the common law flexible. These techniques are: reversing, overruling, disapproving and distinguishing. For example, distinguishing has allowed the common law to develop as any court can distinguish as long as the material facts are different. For example, the tort of negligence has developed from manufacturer’s liability (Donoghue & Stevenson 1932) to professional advice (Shaddock 1981).

However, some judges may be conservative and take a non-interventionist approach as seen in Justice Mason’s ruling in the Trigwell case 1978 as he said “the right to make laws should be confined only to parliament”. This is a weakness of the courts because it allows archaic precedents to perpetuate such as rape in marriage. Therefore, Parliament is able to abrogate these archaic precedents as it did in the Wrongs (Animals) Act 1984.

On the whole, the courts primarily are able to resolve disputes before them, and, despite weaknesses, the Doctrine of Precedent is an effective, and important law-making function of the courts.

 

I hope this can help you all.

JB

Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

The next question I will do in a few parts.

Part two:

Explain the operation of the Doctrine of Precedent and evaluate two strengths of this method of law-making.

However, lower courts must follow binding precedents, even if they disagree if they don’t have the scope to legally manoeuvre. Therefore the Doctrine of Precedent also creates rigidity which can limit the effectiveness of the doctrine as  Judges have to follow archaic precedents (as seen in R v Hakopian) and are forced to wait for a superior court to reverse or overrule the precedent or wait for Parliament the abrogate the outdated precedent.

 

Persuasive precedents do not have to be followed although due respect is paid. Persuasive precedents are from courts of equal standing, of lower standing, from other common law countries (e.g. South Africa), and other state hierarchies (e.g. NSW). Furthermore, judges may include ‘obiter dicta’ which are “matters spoken by the way” and are persuasive. These hypothetical statements are beneficial because the y help guide judges with similar cases in the future and assist in the evolution of common law.

 

I hope this can help you all.

JB