Judicial Precedent When critically analysing to what extent the doctrine of Judicial Precedent affects Judicial Law making, one must first contemplate what the doctrine of Judicial Precedent is. The doctrine of Judicial Precedent is fundamentally a rule that all lower courts are to be bound by the decision or ratio decidendi of the higher courts. As a result of this, cases that are alike are decided in a similar way. However, it is not this simple, as it will be seen throughout this essay that a lot more circumstances are involved that affect the judicial law making process. Judicial Law making (otherwise known as common law) is law that is made within the courts that judges decide on creating. Through relevant case law and journal articles
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It can be claimed that the doctrine hinders common law but on the reverse, it can also aid it. Tensions can arise between the two because precedent requires courts to treat earlier cases as correctly ruled. Two different types of decision making should then be outlined, these being ‘rule based’ and ‘reason based’ decisions. When a decision is made it can either be made on the strict rules that apply to the situation or on the balance of all relevant reason. The contrast of these two types of decisions can lead to some desecration of how judicial law making is brought about because due to the doctrine, courts must take the former approach. Rule based decisions are supported by Sir William Blackstone who observed the declaratory theory of precedent and believed that, ‘the role of a judge is to discover and declare the law but not make it.’ This view however is criticised and considered a two dimensional view due to the court hierarchy system. When cases escalate up the hierarchy, it allows for more flexibility in common law and as a result, allows higher ranked judges to overrule or reverse decisions depending on the …show more content…
The implementation of the Practice Statement is an example of the reason based decisions of courts, as the House of Lords were ultimately re-writing common law. The case of R v G demonstrates the use of the Practice Statement by abandoning a previous rule used for over twenty years established in R v Caldwell . Implementing the Practice Statement and the Lords overruling a decision shows the positive aspect of judicial precedent, as it meant that the Lords were able to come to the right decision that benefitted the defendants who were given an unjust sentence, due to the powers given to them. A constraint of this is can be considered due to how far the case had come up the hierarchy to come to the decision. This potentially wasted a lot of time and money going through the different courts, in a case which any Judge of sound mind could have amended the common law, but were bound by the doctrine. There are instances when the Practice Statement is not a sufficient way of remedying a situation and departing from previous precedent. In the case of R v Khawaja Lord Scarman clarified when it is right to use the Practice Statement to depart from a previous decision and this case was not. The defendant in this case was relying on previous precedent laid out in Zamir. Lord
It can be claimed that the doctrine hinders common law but on the reverse, it can also aid it. Tensions can arise between the two because precedent requires courts to treat earlier cases as correctly ruled. Two different types of decision making should then be outlined, these being ‘rule based’ and ‘reason based’ decisions. When a decision is made it can either be made on the strict rules that apply to the situation or on the balance of all relevant reason. The contrast of these two types of decisions can lead to some desecration of how judicial law making is brought about because due to the doctrine, courts must take the former approach. Rule based decisions are supported by Sir William Blackstone who observed the declaratory theory of precedent and believed that, ‘the role of a judge is to discover and declare the law but not make it.’ This view however is criticised and considered a two dimensional view due to the court hierarchy system. When cases escalate up the hierarchy, it allows for more flexibility in common law and as a result, allows higher ranked judges to overrule or reverse decisions depending on the …show more content…
The implementation of the Practice Statement is an example of the reason based decisions of courts, as the House of Lords were ultimately re-writing common law. The case of R v G demonstrates the use of the Practice Statement by abandoning a previous rule used for over twenty years established in R v Caldwell . Implementing the Practice Statement and the Lords overruling a decision shows the positive aspect of judicial precedent, as it meant that the Lords were able to come to the right decision that benefitted the defendants who were given an unjust sentence, due to the powers given to them. A constraint of this is can be considered due to how far the case had come up the hierarchy to come to the decision. This potentially wasted a lot of time and money going through the different courts, in a case which any Judge of sound mind could have amended the common law, but were bound by the doctrine. There are instances when the Practice Statement is not a sufficient way of remedying a situation and departing from previous precedent. In the case of R v Khawaja Lord Scarman clarified when it is right to use the Practice Statement to depart from a previous decision and this case was not. The defendant in this case was relying on previous precedent laid out in Zamir. Lord