Do Stare Decisis and Judicial Precedent hinder the development of law?

Published: 2021-06-17 10:45:04
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INTRODUCTIONThis essay examines the question whether Stare Decisis and Judicial Precedent hinder the development of law in the English Legal System. Stare Decisis in Latin means, let the decision stand, by adhering to principles established by decisions in earlier cases. Judicial precedent is the previous decision of a judgment cited as an authority for deciding a similar set of facts. The common law has developed by broadening down from precedent. The argument presented in this essay is that stare decisis and judicial precedent do not hinder the development of the law because they are important sources of law from which common law and statutory interpretation have developed over centuries in England. This do not ignore that stare decisis and judicial precedent have sometimes caused rigidity in the application of the law, however the virtue of certainty in the law that they have brought to the law far outweigh concerns over rigidity in the law and the appellate system of superior courts, which may depart from existing principles of stare decisis is an inherent safeguard against this eventuality. Law is the system of rules which a particular community recognizes as regulating the actions of its member and which it may enforce by the imposition of penalties.BACKGROUNDThis essay outlines the key principles of stares decisis and judicial precedent; discussing why these principles have been critical to the development of the law, while offering about the rigidity they may pose. It will also examine how superior courts may cure the risk of rigidity in the law by departing from judicial precedent. In doing so, this shows that legal system is flexible, can develop, but the basis for this stem from precedent, which may show trends of rigidity and stagnations, therefore the necessity of setting a new doctrine of precedent. Superior courts may depart from existing precedent when rigidity threatens the development of law, created new basis for a new precedent to guide the development of the law.STARE DECISIS AND JUDICIAL PRECEDENT HINDER THE DEVELOPMENT OF LAW.When a judgement is decided, judges are obliged to keep a record of their decision in law reports which have two parts, the points of law that lead to the decision of the case, regarded as ratio decidendi ‘‘the rule in a decision’, the legal principle upon which the decision in a specific case is founded” . The obiter dicta remarks decisions which are not necessary to reach a decision, made as comments, illustrations or thoughts (“things said in passing”). Ratio creates binding precedent, as binding precedent can only refer to legal ruling. Precedent is a principle built up in a past legal case that is either Binding or Persuasive for a court when choosing subsequent cases with comparative issues or actualities. Precedent is a Rule of Law set up by a court for specific case and from there on alluded to when coming up with a decision for comparative cases . R v R for a long time, sexual unlawful intercourse in rape was understood to have taken place outside marriage, meaning that there could not be rape within a marriage. This idea dated back to the times when, on getting married, a woman automatically gave her irreversible consent to sexual intercourse for the rest of the marriage. Not surprisingly, as attitudes to women and the marriage relationship changed, the law concerning rape within marriage was increasingly criticized, Until in 1991 it was altered in the case of R v R where the House of Lords, reversing the decision of the Court of Appeal in R v Kowalski (1988), took the opportunity to abolish the marital rape exemption rule, thus ensuring that a man could be liable as a principal offender in the rape of his wife . Binding precedent hinders the development of law. Stare decisis works within the court hierarchy of the English legal system, being an important method for organizing courts into various levels and jurisdiction. The court hierarchy gives clarity to the administration of justice. Due to the court hierarchy lower courts have no way of interpret law when it has being wrongly interpreted before by a higher court. Young v Bristol Aero plane Co Ltd, The plaintiff received injury in an accident arising out of and in the course of his employment and received compensation under the Workmen’s Compensation Acts. He then sought to obtain damages in respect of the same accident, alleging that the defendants, in breach of their statutory duty, had failed to fence one of their machines which he was using. In their defence, the defendants pleaded: “In the further alternative the defendants say that the plaintiff before the commencement of this action claimed and received compensation under the Workmen’s Compensation Acts in respect of [the accident]. The plaintiff is thereby barred from recovering damages in respect of the said accident.STARE DECISIS AND JUDICIAL PRECEDENT DO NOT HINDER THE DEVELOPMENT OF LAW.There is an acknowledged risk of constraint application of the law because of stare decisis which may hinder the development of it. However, it is argued in return that superior courts such as Supreme Court may cure the risk of rigidity in the law by departing from the existing principles of stare decisis. For example the recent decision of the Supreme Court on joint criminal enterprise which held that decisions and judicial precedents on this issue over the past thirty years were wrong. In doing so, this shows that the legal system is flexible, can change and develop. In this instance judicial precedent is not displaced as principles of law. New precedents are established to develop the law and guide courts afresh. This can also be seen in Overruling, Disguishing, Reversing, and the Practice statementOverruling a past point of reference emerges where a court chooses, in a later case, that the decision in a prior case was wrong. Should a court in a later case choose that the lawful managing or thinking in a prior case wasn’t right, then it takes after that the court is truly saying that the prior choice ought not to currently be taken after and the case is no more thought to be binding. Overruling happens when a higher court overrules a choice made by a lower court in a prior case e.g. the Supreme Court overruling the choice of the Court of Appeal in a prior case; when the European Court of Justice chooses to overrule a past choice that it has settled on by not taking after the choice; at the point when the Supreme Court chooses to practice its power and announce one of its own past choices to be no more law and overrules it. The cases of Pepper v Hart (1993) and Davis v Johnson (1978) give a decent sample of the guideline of overruling by the House of Lords utilizing its power under the Practice Statement 1966. The practice statement allows the Supreme Court to change the law if it believes that an earlier case was wrongly decided. In Pepper v Hart the House of Lords chose that Hansard (the official record of what is said in Parliament) could be conceded in evidence before the court when attempting to choose what was implied by specific words in a statute. This implied the before choice of Davis v Johnson such that Hansard couldn’t be counseled, no more spoke to the law and was overruled. Distinguishing is a strategy which can be utilized by a judge to abstain from following a past choice which they would normally undoubtedly take after. Distinguishing takes place when judges can find that the material facts of the case are reasonably different from previous cases. This will empower the judge to make a qualification between the present case and the past choice which would somehow or another structure a point of reference which the judge must take after. Unless the judge can draw such a qualification the judge would will undoubtedly take after the past case regardless of the possibility that he or she didn’t concur with the lawful thinking. The idea of legal point of reference is entirely held fast to. There are two cases which are frequently referred to by method for representation of how recognizing functions: Balfour v Balfour outlined that the couple had no intention to generate a legal contract that was binding upon the ex-couple. Meanwhile, in Merritt v Merritt the material contrast was that the couple generated a potential agreement, but never established a binding relation regarding both of them. In both cases a wife made a case against her spouse for rupture of agreement however, the court recognize that there were significant material differences, distinguishing the case as for society’s demeanor towards the subject of conjugal breakdown changed and that the court’s choice in Merritt just should have been more sensible and mirror the gatherings’ have to ensure themselves. Reversing is when a higher court in the Hierarchy changes a decision from a lower court case. In the case R v Kingston the ration is; Appeal allowed. There is no rule of English Law which permits a defence based on involuntary intoxication where the defendant is found to have the essential mens rea for the crime. The indictment had built up the defendant had the vital intent for the crime. An intent is still an intent whether under the influence of alcohol or not.CONCLUSIONThe body of the essay has substantiated the argument by reference to role of stare decisis and judicial precedent not only as principles binding on lower courts, but also as sources for the development of the law. When superior courts depart from earlier decisions, the new decisions form new stare decisis and judicial precedent which guide the development of the law. But the basis for that is a recognition of the necessity for new stare decisis and judicial precedent on the basis of the hardship or rigidity of existing judicial precedent. However, stare decisis and judicial precedent are not displaced; they remain inherent characteristic principles of the legal system in England. 

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