Doctrine of Judicial Precedent Essay
Doctrine of Judicial Precedent
Statutes and case law are two significant sources of the UK law. In the convention of common law, the law applied to a case is decided through judicial precedent and statutory interpretation. There can be effectiveness of judicial precedent and statutory interpretation in separation as well as when they are combined in the development of law. To what extend can a judge develop the law through the operation of doctrine of judicial precedent and application to the rules of statutory interpretation will be discussed in this assignment. In the first place, this assignment will give an introduction to judicial precedent and statutory interpretation. In the second place, how can judicial precedent and statutory interpretation develop the law will be analysed and evaluated. Eventually, the conclusion of this assignment will be given.
Judicial precedent, a procedure whereby judges follow previous case with sufficiently similar facts, regulates case law, which is crucial to protect law stability. As MacCormick said: “to understand case law… is to understand how it is that particular decisions by particular judges concerning particular parties to particular cases can be used in the construction of general rules applying to the actions and transactions of persons at large.” (James, 2010) Judicial precedent applies to the doctrine of stare decisis.
That is to not disturb the decisions that are settled. For instance, through the stare decisis, the House of Lords held that the manufacturers owed a duty of care to their ultimate consumers of their goods in the case of Donoghue v Stevenson (1932), creating a binding precedent followed in Grant v Australian Knitting Mills (1936) in respects of duty of care and neighbor principle. The binding precedent is a legal principle formed by the ratio decidendi, the reason for the decision. This means that the ratio decidendi must be followed with the recognition of the legal reason for the decision in the previous case (Jacqueline, 2010). The remainder of a judgment is Obiter dicta. It is a statement made by the way, which though is not binding but can be persuasive in the future cases.
Statutory interpretation is the process of how the statutes interpreted and applied by a judge. There are four approaches developed to deal with the task of interpretation, including literal rule, golden rule, mischief rule and purposive rule. When literal rule is applied, the words in the statutes are given their dictionary, original or everyday meaning, with the respect to the will of Parliament. For instance, in Whitley v Chappell (1868), with the application to literal rule, the court held that the defendant was not guilty since a dead person is not, in the literal meaning of the word, ‘entitled to vote’. Golden rule was defined in Grey v. Pearson4 (1857), “the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity but no further.”
One of the illustrated cases is Re Sigsworth (1935). A son murdered his mother entitled to nothing since the court applied golden rule to modification to prevent repugnancy and absurdity. Instead of determining what the Parliament said, the Mischief rule is applied to what Parliament meant. The Mischief rule was applied in Smith v Hughes (1871). Lord Parker CJ held that the activities of prostitution were in a “street or public place” for the intension of the Act to prevent the mischief of the impact of solicitation on the passers by. With a wider application, purposive rule is aimed to give promotion to the general legislative purpose emphasizing the provisions.
Lord Denning stated “…we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis”. In Cutter v Eagle Star (1998), instead of literal rule, purposive rule is applied, holding that car park was a road, which underlies the Road Traffic Act (1988). Also, a purposive approach is now often applicable as a result of European Law. (James, 2010) Examples and evaluations of development
The judicial precedent is regarded as the backbone of the common law whereas approaches of statutory interpretation have developed as significant tools in interpreting the statutes. Furthermore, there has been a notable synergy between judicial precedent and statutory interpretation in the development of law.
First of all, the development of law can be achieved by applying a suitable decision from previous cases with similar materials. In the case of Shaw v DPP (1962) the House of Lords held that a crime of conspiracy to corrupt public morals existed. The conspiracy to corrupt public morals consisted of an agreement to corrupt public morals by means of the magazine, and the defendants had been rightly convicted. This was followed in Knuller v DPP (1973), being held that an agreement to publish adverts to facilitate the commission of homosexual acts between adult males in private was a conspiracy to corrupt public morals (E- lawresources, N/D).
Therefore, with the application to doctrine of judicial precedent, the decision in a previous case can be applied to similar cases in the future, which then can contribute to the development of law in terms of quantity, certainty and stability. In addition, since consistent decisions are provided, the law is more possible to ensure fairness, and the citizens can be more willing to trust the law with confidence of being treated fairly. On the other hand, it is said that the doctrine of judicial precedent can be too rigid, as there seems to be a tendency that the binding precedent will be strictly applied in the decisions of cases. Also, since there are no uniform cases, the operation of the doctrine of judicial precedent may lead to a certain degree of injustice, leaving limited space for the development of law.
However, the rigidity of judicial precedent can be avoided in practice through the exceptions of decisions including application of overrule and distinguishing (James, 2010). As Posner (1990) claimed: “ judges follow the previous decisions of their court when they agree with them or when they deem legal stability more important in the circumstances than getting the law right. But a precedent’s analogical significance means simply that the precedent contains information relevant to the decision of the present case.” (Richard, 1990) Despite following the precedent strictly, judges are able to change the decisions in cooperation with facts.
The Practice Statement was made by Lord Gardiner in1966, allowing the House of Lord to change its previous decision when it appears “right to do so” in an attempt to achieve justice (Jacqueline, 2010). To illustrate, in Miliangos v George Frank (Textile) Ltd (1976), the House of Lord overruled Re United Railways. In the case of Re United Railways (1961), it had been held that all debts were to be paid in sterling in an English civil case. In the case of Miliangos v George Frank (Textile) Ltd, the House of Lords held that damages could be awarded in any other foreign currency in the contract, due to the changes in conditions of foreign exchange (Vaughan, 2010). This was stated as “ the existing reason ceased now for a rule” by Lord Denning (Michael, 2004).
Distinguishing is another technique used by judges in order to avoid a previous binding decision that may cause inconvenient or unsuitable results. The case Balfour v Balfour (1919) is often cited in conjunction with Merritt v Merritt (1970) by way of illustration of how distinguishing works. In both of the cases, a wife sued her husband for breach of contract. In Balfour v Balfour, based on the fact that the parties had not yet been divorced when the agreement was formed, the court held that there was no enforceable agreement, owing to a rebuttable presumption against intention to create a legally domestic agreement. In the case of Merritt v Merritt, however, the claim was successful.
The court was able to distinguish the material difference between two cases. Lord Denning stated that “When … husband and wife, at arm’s length, decide to separate and the husband promises to pay a sum as maintenance to the wife during the separation, the court does, as a rule, impute to them an intention to create legal relations.” (Zander, 2004) As a result, the appeal from the husband in this case was dismissed. The exceptions of decisions enable the judges to be more flexible in relation of following or refusing earlier decisions from similar cases, which seems to extend the power of the law lords to create law and the space for the development of law. However, it may decrease the level of law certainty and predictability.
Regardless of the role statutory interpretation plays in helping judges deal with the task of interpreting statutes, the application and development among the four rules of statutory interpretation can promote law to adapt to changing needs. In practice, judges are continually applying the existing rules to new fact situations and thus being able to keep pace with the changes of society. Firstly, approaches to statutory interpretation can attribute to the creativity and flexibility of law. Applying purposive rule, the court of the case of Royal College of Nursing v DHSS (1981) held that the Abortion Act 1967 aimed at preventing the mischief of ‘back-street abortions’ where no medical care was provided. Therefore, with the advancement of medical technology, abortion became legal to be administered by nurses. (James, 2010)
In addition, rules of statutory interpretation can ensure the willing of Parliament. Judges cannot make law, which is the role of Parliament, however, they can and do try to give effect to Parliament’s intentions by using statutory interpretation. For instance, in the case of R v Registrar General ex parte Smith (1991), purposive rule was applied instead of literal rule due to the fact that the applicant was confirmed to be dangerous to his natural mother by a psychiatrist and ‘Parliament could never have intended to promote such serious crime.’ Consequently, the applicant was failed to obtain his birth certificate (Jacqueline, 2010). Approaches to statutory interpretation provide opportunities for judges to apply to different rules flexibly based upon the facts and the intention of Parliament. However, increases of flexibility and creativity of law may cause decreases of certainty and consistency.
Last but not least, as two major aspects of the UK law, the interrelationship of the doctrine of judicial precedent and the rules of statutory interpretation are significant to the development of law. For example, in Pharmaceutical Society of Great Britain v Boots Ltd (1953), there is a technical legal meaning of “offer for sale”. With the application to literal rule, the display of goods in a store shelf was held as an invitation to treat but not an offer to sell. This decision was followed in Fisher v Bell (1961). The court held that the display of product in a shop window was an invitation to treat and thus there was no violation of the Act. (James, 2010)
As a consequence, with doctrine of judicial precedent, previous cases can be applied to cases with similar facts in the future, whereas with statutory interpretation, different decisions can be made with choices of different rules depending on different facts. The synergy between these two aspects produces certainty, elasticity and appropriate space for the gradual development of law. In conclusion, although a degree of rigidity and instability might occur in the progress of law development. Judicial precedent and statutory interpretation in combination can attribute to an increased level of certainty, consistency, flexibility, and elasticity of the law, creating an appropriate space for a gradual development of law.
1.James, H., 2010, Learning Legal Rules
2.Jacqueline, M., 2010, Unlocking The English Legal System
3.E-lawresources, N/D, [Internet] Available from <http://www.e-lawresources.co.uk > [Accessed 11 /11/ 2012] 4.Richard, A, P., 1990, The Problems of Jurisprudence
5.Vaughan, B., 2010, Foreign Currency Claims in the Conflict of Laws 6. Michael, Z., 2004, The Law-Making Process
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 16 May 2017
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