Tuesday, October 24, 2006

Judicial Precedent - ELS

Question 1:


People want 2 consistent things:

1. That the law shall be certain, and
2. That it shall be just and move with times

Rigid adherence to precedents will do. Paying lip service to precedent, while admitting the fine distinctions gives us the worst of both worlds.

On the other hand, too much flexibility leads to intolerance and uncertainty.

Discuss.



Answer guide:
  1. What is precedent? Explain stare decisis.
  2. Law made by judges – compare with parliament – the ultimate body that makes law – the people who are elected by the voters – whereas, judges are unelected.
  3. How is precedent said to be certain?
  4. Like cases are supposed to be treated alike – this in certain ways achieves certainty. Why?
  5. Similar facts – similar decisions are supposed to be made by judges; but what’s the problem? Judges when making decisions have choices – what are the choices available to them?
  • They can follow previous cases
  • Distinguish
  • Overrule
  • Reverse
  • Disapprove

6. Judges often try to distinguish cases that the end results is sometimes illogical.
7. So how can the law be certain when judges are allowed to distinguish and make their own decisions which will then result in uncertainties?

8. Is there strict adherence to precedent by judges?
9. HL (1966) Lord Gardiner issued a practice statement – that HL can depart from their own previous decisions of which they had previously bounded by them (see: London Tramways Co Ltd v London Borough Council)

10. But do they do so? Initially No (see: R v Kansal; R v Lambert)
11. Later, they were more prepared to apply the practice statement (1966)
12. R v R – rape within marriages – wife no longer a property of husband.
13. Hall v Simons (2000) HL – refuse to follow earlier case of Randel v Worsley (1969) which had given barristers immunity against claims of negligence for their presentation of cases in court.

Court of Appeal (CA)

General rule – bounded by their own previous decisions – 3 exceptions

(i) Decisions made per incurium
(ii) 2 conflicting CA decisions
(iii) HL (implied) had overrule CA’s decision.

Dixon v British Broadcasting Corporation (1955)

- A decision on the construction of statutory provision was regarded as per incurium on the ground that other relevant provisions which threw light on the words in question had not been brought to the attention of the court.

Bonnlami v Home Secretary (1985)

- Failure to consider a statutory provision is one of the clearest cases in which the principles laid down in Young v Bristol Aeroplane, this court is not bound to follow its own decision.

Midland Banker Trust Co Ltd v Hatt Stubbs & Kemp

- Decline to follow decision of CA in Groom v Crocker on ground that inconsistent with subsequent decision of HL in Hedley Bryne Co Ltd v Heller & Partners Ltd.

14. But do judges really make laws?

15. What if there is no precedent laid down on principles or law for a new/novel case?

16. Judge will still have to come to a decision and they cannot say that they refuse to make a decision.

Donoghue v Stevenson

- Is the principle enunciated something new or is it a new principle or is it merely expanding or modified or altered to allow those who are not in a contractual relationship to claim remedies?

Hedley Bryne v Heller & Partners

- Is the case expressing a new point or principle or merely expanding it to cover economic loss? Bear in mind the principle was taken from the case of Donoghue v Stevenson.

- Look at the case of AIREDALE & RE: A (2002)

How are we to achieve consistency & certainty if judges are allowed to choose what mode they would want to use in deciding cases that come before them?

What do we achieve by having consistency and certainty in the law?

- Lawyers can plan ahead when advising their clients on whether they have a good or bad case and whether it should be litigated.

Flexibility

- Judges can make law. Changes in social policies and economic policies – these changes are faster than the parliamentary process of enacting legislation.

Uncertainty

- Ability of judges/judiciary to select which authority to follow through the use of ‘Distinguishing mechanism’.

So how do we actually achieve certainty?

- In the long run, this can only undermine a system which claims to operate on the basis of a hierarchy of binding precedent.

Conclusion

Weigh the advantage and disadvantages of flexibility, certainty and consistency against uncertainty, rigidity and inconsistency to see whether it has tilted the balance of convenience.

Broome v Cassell, Lord Hailsham (HL)

Principles: Exemplary Damages
Ratio Decidendi: Judicial Precedent & Usurpation of power by CA

“It is not open to the Court of Appeal to give gratuitous advice to judges to ignore decisions of the House of Lords in this way, if it were open to the court of Appeal to do so, it would be highly undesirable …the fact is, and I hope it will never be necessary to say it again that in the hierarchical system of Courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tier. Where decisions manifestly conflict, the decision in Young v Bristol Aeroplane offers guidance to each tier in matters affecting its own decision.”

(Note: Young v Bristol Aeroplane Ratio Decidendi – Guidelines on doctrine of judicial precedence and stare decisis)


Question 2:

Consider how the doctrine of binding precedent works in the English Court, having particular regard to its advantage and disadvantages.



Answer guide:

1. Define judicial precedent and explain how it operates with reference to the ratio decidendi and obiter dicta.

2. Emphasize the authoritative hierarchy of the Courts structure.

3. Mention the European Court of Justices and ECtHR.

4. Note that HRA 1998 requires courts in UK to take into consideration all previous decisions of ECtHR, which now becomes binding precedent to UK courts.

5. Explain and consider the difference between criminal and civil divisions of the Court of Appeal.

6. Refer to the process of ‘Distinguishing’ cases based on their facts.

7. Consider the advantages and disadvantages.

Judicial Precedent Defined

Judicial precedent means judges are required to follow the rule of law established in the previous decided cases of the court of equal status or higher, if the legal principle involved is the same and the facts are similar.

A later court can circumvent an inconvenient precedent which would otherwise be binding, by distinguishing it on the facts of the case or on the legal principles involved.

Judicial precedent is a system of law-making by judges rather than by parliament. The general applicable decisions made by the judges, referred to as precedents, are used as models for future cases, and these are developed on a case-by-case basis to establish the area of law.

There are two major tasks for judges when deciding cases:

1. To establish what the facts are (that is, what actually happened), and
2. How the law applies to those facts.

Once decision is made, a future similar case with similar facts from the same hierarchical courts or lower courts must be treated in the same way. The decided case will thus become the stare decisis for the future case decisions. Stare decisis basically means “to keep the decisions of the past cases”.

The only binding part of the decided cases is the “ratio decidendi”. In the judgment, the explanation of the legal principles and the rule of law are referred to as the “ratio decidendi”. The notion of ratio decidendi simply means “Reason for the Decision”. Most case laws are made by Appellant Courts and the House of Lords which ultimately set the stare decisis. Judge made laws are decisions concerning application of principles or related principles from litigation proceedings and through the process of appeals to the higher courts.

Other than the ratio decidendi, there may also be other comments made by the courts but not an essential part of the ratio decidendi. Such statements are called “Obiter dicta” (which means ‘things by the way’) and they do not form part of a ratio decidendi but are used as persuasive authority which the judges might take into consideration and adopt if they consider it appropriate to do so. A good example of a highly influential dictum is the statement by Lord Atkin in Donoghue v Stevenson [1932]. The dictum is clearly obiter, but had been adopted in subsequent cases (example: The Dorset Yacht case).

Because of the lack of official agreement as to what the ratio of each decided case actually denotes, it reflects uncertainty and therefore no consistency and certainty in law itself. Ratio is always a difficult concept because Common Law is surrounded by uncertainty about what is the correct view of the law. Judges also do not state outright the ‘Ratio’ of which his decision is based on, and it is for the person reading the case to determine what the ratio is.

Advantages of Binding Precedents

1. Consistency

This refers to the fact that ‘like cases will be treated alike and are not subjected to the whims and fancies of individual judges.

2. Certainty

Lawyers and their clients are able to predict what the outcome of particular legal questions is likely to be in the light of previous judicial decisions. Once the legal rule has been established in one case, individuals can orientate their behavior with regard to that rule, relatively secure in the knowledge that it will not be changed by some later or lower court.

3. Efficiency

Cases to some extent are predictable and save time of the judiciary, lawyers and their clients for the reason that cases do not have to be reargued. At such would be much less costly for the parties to the dispute or for the prosecution and defendants.

4. Detailed rules

Case laws respond to real situation. Case laws shows detailed application of law to various circumstances and are more informative than statutes which are basically theory and logics.

5. Flexibility

Law need to be flexible to meet the needs of the ever changing society and case laws can make changes faster than parliament. There are various mechanisms by means of which judges can manipulate the Common Law provide with an opportunity to develop law in particular areas without waiting for Parliament to enact legislation. Example is the case of Airedale NHS Trust v Bland [1993] on the question of whether a life support machine should be switched off when a person was in a persistent vegetable state. Although it will contravene the Human Rights Act (the right to live), the House of Lords allowed the termination. In Re: A [2000], it dealt with the question whether a Siamese twin would be separated by an operation when the hospital recommended this, but where the parents had expressed clearly their objection. Here again, the House of Lords allowed the operation to proceed.

Hayek argued that there should be less legislation and more case laws. This is because, if a ‘ratio’ of a binding precedent do not work, the later judges can abandon them and the law would develop in response to demand for justice.


Disadvantages of Binding Precedent

1. Complexities and voluminous

Hundreds of thousands of decided cases comprise many thousands of pages of law reports and more added all the time. Judgments are very long, and not readable and the ratio decidendi are difficult to find. It is also difficult to pinpoint clearly the appropriate principles laid by judges for each of the decision of each case.

2. Distinguishing by judges

Judges are allowed to distinguish a binding precedent on the case before them if they consider the principles of the binding precedent to be inappropriate. This leads to mass number of cases establishing different precedents in varying circumstances which further complicates the Common Law.

3. Unpredictability

If too many kind of illogical distinctions are made, it is impossible to make out which precedent will be applied.


4. Rigidity and fixity

Judges have to follow a binding precedent even though they think it is bad law or inappropriate. Bad judicial decisions may become ossified on the basis of an unjust precedent, with the consequences that previous injustices are perpetuated for a long time before another similar case gets to a court high enough to overrule them.

5. Unconstitutional

Case laws are judicial decisions and the fundamental question refers to the fact that the judiciaries are overstepping their theoretical constitutional role by actually making law rather than applying it. Law reforms also give rise to the question as to how the law is to develop and change to cater for changed circumstances if cases are always to be decided according to precedent.

6. Dependence on chance

Case law changes only in response to those who had brought them through the various court hierarchies, that is, from High Courts to the Court of Appeals and then to the House of Lords. Only when a case is pushed far enough to the highest hierarchy of Appeal Courts would a new precedent be created.

The Authoritative Hierarchy of Court Structure

1. Reversing

A court higher up in the hierarchy can overturn a lower court’s decision on appeal.

2. Distinguishing

The main device for avoiding binding precedents is that of distinguishing. A case based on its own material facts, does not necessary had to follow a precedent case if judges wanted to avoid previous inconvenient decisions. This is possible when a court regard the facts of the case before it as significantly different from the facts of a cited precedent and thus consequentially, it will not find itself bound to follow that precedent.

3. Overruling

A court higher up in the hierarchy in a different later case can set aside a legal ruling established in a previous case. For example, the House of Lords are empowered to overturn or depart from its own previous decisions if the need arise. Overruling refers to the ratio of a case and not its decision. Overruling operates retrospectively, with the effect that the principle of law being overruled is held never to have been law. It has to be emphasized, however, that the courts will not shrink from overruling authorities where they see them as no longer representing an appropriate statement of law. This can be seen in the case of R v R [1992] which recognizes the possibility of rape within marriage. But Bellinger v Bellinger [2003] does also show that the courts’ are also reluctant to overrule cases and change the law where parliament is the appropriate forum for such change.

The European Court of Justice and ECtHR

The European Court of Justice (ECJ) is the judicial arm of the European Union (EU). In the field of community law, its judgment overrules those of national court. The ECJ decides whether any measures adopted, or rights denied, by the Commission, Council or any national governments are compatible with Treaty obligations. It also provides authoritative rulings, at the request of national courts, on the interpretation of points of Community law, under Art 234 of the Treaty of Rome. The European Court is not bound by its own decisions and it is always open to the ECJ to depart from its previous decisions when it considers it appropriate to do so. But its decision (ECJ) binds all European Courts, including the House of Lords in UK. The Human Rights Act 1998 (HRA) had incorporated the European Court of Human Rights (ECHR) into UK law, making the ECHR the supreme court in matters related to its jurisdiction.

Conclusion

The doctrine of binding precedent operates in theory to control and limit the ambit of judicial discretion. Following of precedent is easier in UK than in many other countries because England has a centralized legal system with only a small number of courts. The case law methods is sometimes said to be flexible. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by parliament.

The courts can move more quickly to lay down new principles, or extend old principles, to meet novel circumstances. Over the centuries, the UK legal system had built up substantial wealth of cases that are illustrative of vast numbers of principles of English law. However this could be considered a disadvantage too as its very bulky and complex, making it increasingly difficult to find the principles of law for each case.

Case laws are practical in character. It is based on the experience of actual cases brought before the courts rather than on logic and theory.

The interest of justice also demands impartiality from judges and this can be assured by the existence of a binding precedent.


Question 3:

“The effect of the doctrine of precedent is to render judicial decision-making a mechanical process. There is no room for judicial creativity at all.
Discuss.



Judicial precedent means judges are required to follow the rule of law established in the previous decided cases of the court of equal status or higher, if the legal principle involved is the same and the facts are similar.

According to the declaratory doctrine of common law, judges do not make law. There are, in Blackstone's word, "the depositories of the law, the living oracles, who must decided in all cases of doubt.

Judges express a part of the total, immanent wisdom of law which is assumed to be already existent before their decision. The judge works from within the law which is 'the repository of the experience of the community over the ages' (Postema 1986). Thus, even though the judge may reach a decision on a legal problem never before addressed by a common law court, he does so not as an original author of new legal ideas but as a representative of a collective wisdom greater than his own. He interprets and applies the law but does not create it, for the law has no individual authors. It is the product of the community grounded in its history.

The doctrine of the law is this: that precedents and rules must be followed, unless flatly absurd or unjust. But law, wiser than any individual is the perfection of reason, so an unjust or absurd decision cannot be declaratory of the law. It is not bad law but, in Blackstone's view, no law at all.

Once decision is made, a future similar case with similar facts from the same hierarchical courts or lower courts must be treated in the same way. The decided case will thus become the stare decisis for the future case decisions. Stare decisis basically means “to keep the decisions of the past cases”.

The only binding part of the decided cases is the “ratio decidendi”. In the judgment, the explanation of the legal principles and the rule of law are referred to as the “ratio decidendi”. The notion of ratio decidendi simply means “Reason for the Decision”. Most case laws are made by Appellant Courts and the House of Lords which ultimately set the stare decisis.

Other than the ratio decidendi, there may also be other comments made by the courts but not an essential part of the ratio decidendi. Such statements are called “Obiter dicta” (which means ‘things by the way’) and they do not form part of a ratio decidendi but are used as persuasive authority which the judges might take into consideration and adopt if they consider it appropriate to do so. A good example of a highly influential dictum is the statement by Lord Atkin in Donoghue v Stevenson [1932]. The dictum is clearly obiter, but had been adopted in subsequent cases (example: The Dorset Yacht case).

Thus, the act of complying with the doctrine of stare decisis results in case laws and judge-made laws, which becomes an important source of English Law. Judges have to follow previous decided cases of the court of equal status or higher. Stare decisis are therefore look at as being rigid and had been considered as mechanical. Judges have to follow a binding precedent even though they think it is bad law or inappropriate.

In the words of Prof Drewry, ‘An outdated precedent is a mummified corpse of long-dead social value.’ A rigid adherence to precedent does lead to injustice where a court may have to apply an out-dated decision of a superior court that may have stood for many years, because no attempt has been taken to bring them to the highest court.

While certainty is much desired, law needs to be flexible to meet the needs of the ever changing society. As proffered by Lord Geoff, ‘the law must be developed by judges and jurist in partnership.

In the practice statement (Judicial Precedent) 1996, their Lordships regard the case of precedent as indispensable as it provides at least some degree of certainty. Nevertheless, their Lordships recognize that too rigid adherence to precedent may lead to injustice which may unduly restrict the proper development of the law. While treating former decisions as binding, the HL may depart from any decision, when it appears it right to do so. However, this announcement is not intended to affect the use of precedent elsewhere than in the HL. Although this practice of departure was used sparingly, however, it had been seen that the HL had departed where the conditions in their earlier decisions no longer prevail or in modern conditions the law ought to be different (example: Miliangos v George Frank, R v Shirpuri, & Arthur JS Hall v Simons).

Nevertheless, instead of departing, the HL may distinguish an unpopular precedent (see: Conway v Rimmer).

There are various mechanisms by means of which judges can manipulate the Common Law to provide with an opportunity to develop the law in particular areas without waiting for Parliament to enact legislation. Example is the case of Airedale NHS Trust v Bland [1993] on the question of whether a life support machine should be switched off when a person was in a persistent vegetable state. Although it will contravene the Human Rights Act (the right to live), the House of Lords allowed the termination. In Re: A [2000], it dealt with the question whether a Siamese twin would be separated by an operation when the hospital recommended this, but where the parents had expressed clearly their objection. Here again, the House of Lords allowed the operation to proceed.

Hayek argued that there should be less legislation and more case laws. This is because, if a ‘ratio’ of a binding precedent does not work, the later judges can abandon them and the law would develop in response to demand for justice.

Although the doctrine of binding precedent operates in theory to control and limit the ambit of judicial discretion, the case law methods is sometimes said to be more flexible as they are practical in character.

It follows that the doctrine of precedent - the doctrine that judges must treat as binding on them the essential legal grounds of decision adopted in similar cases previously decided in courts of higher or perhaps equal status - is complex in classical common law thought. It is perhaps much more flexible than it is typically portrayed as being (Lobban 1991).

Case laws have shown to have responded to real situation. Case laws shows detailed application of law to various circumstances and are more informative than statutes which are basically theory and logics. They are based on the experience of actual cases brought before the courts rather than on logic and theory. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by parliament. The courts can move more quickly to lay down new principles, or extend old principles, to meet novel circumstances. Over the centuries, the UK legal system had built up substantial wealth of cases that are illustrative of vast numbers of principles of English law.

However this could be considered a disadvantage too as its very bulky and complex, making it increasingly difficult to find the principles of law for each case.

The interest of justice also demands impartiality from judges and this can be assured by the existence of a binding precedent.



Question 4: ZONE A, 2004

The doctrine of precedent has a dual function; it provides an image of certainty, consistency and clarity, while allowing the common law to continually adapt and develop. Discuss.


Judicial precedent means judges are to follow the rule of law of previous decided cases of the court of equal or higher. It also means: ‘like cases are to be treated alike.’ The decided cases will thus become the stare decisis for future case decisions.

The only binding part of the stare decisis is the ratio decidendi in the judgment which is the legal principles and the rule of law. Other than the ratio, there may also be other comments made by the judge which is referred to as the ‘obiter dicta’, which means: ‘things by the way’. They do not form part of the ratio but are used as persuasive authority which judges might take into considerations and adopt if they consider appropriate. A good example is the highly influential dictum of Lord Atkin in Donoghue v Stevenson (1932) on the neighbourhood principles. This principle had been widely adopted in subsequent cases (example: The Dorset Yacht case).

In essence, Judicial Precedent doctrine refers to the fact that a decision of a higher court will be binding on an equal or lower court. The House of Lords stands at the summit of this hierarchy and its decisions are binding on all courts. The next court in the hierarchy is the Court of Appeal, and further down are the Divisional Courts, High Courts, Crown Courts, County Courts and Magistrate Courts.

On joining the European Union, UK is now also subjected to EU laws. In other words, EU laws supercede any existing UK laws on the contrary. That is to say, the ECJ is superior to the House of Lords and its decision is binding on all UK courts. Also, as a consequence of the HRA 1998, the convention rights of ECHR are now part of the jurisprudence of the UK courts.

If ‘like cases are to be treated alike’, the on that basis, the law reflects consistency and clarity. It provides a firm foundation that permits lawyers and citizen to plan their affairs with confidence. It cut short legal arguments and enables lawyers to forecast the outcome of their clients’ cases with reasonable certainty in the light of established precedence.

Thus, the act of complying with the doctrine of stare decisis results in case laws and judge-made laws, which becomes an important source of English Law. Because judges have to follow strictly previous decided cases, adhering strictly to stare decisis are therefore look at as being too rigid and had been considered as mechanical. Judges may have to follow a binding precedent even though they think it is bad law or inappropriate.

In the words of Prof Drewry, ‘An outdated precedent is a mummified corpse of long-dead social value.’ A rigid adherence to precedent does lead to injustice where a court may have to apply an out-dated decision of a superior court that may have stood for many years, because no attempt has been taken to bring them to the highest court.

While certainty is much desired, law needs to be flexible to meet the needs of the ever changing society. As proffered by Lord Goff, ‘the law must be developed by judges and jurist in partnership’.

In view of the increasing judicial criticisms of the practice of stare decisis, in particular, it was said that the rule did not produce the desired certainty in the law, and that it sometimes produce absurd judgment, the Lord Chancellor issued a Practice Direction in 1966 where the House of Lords were allowed to depart from their own previous decisions when it appears right to do so. Although Lord Chancellor, Lord Gardiner, regards precedence as indispensable, nevertheless, he recognized that too rigid adherence to precedence may lead to injustice. Lord Gardiner emphasized that the change would enable the House of Lords to adapt English law to meet changing conditions.

Two years passed before the House of Lords first exercised the power to depart from its previous decision. That was in Conway v Rimmer (1968) on a question of the discovery of documents. In Miliangos v George Frank [1976], the HL overruled Re: Havana [1961] by allowing damages to be awarded in any foreign currencies if they are specified in the contract.

However, this flexible privilege is only accorded to the House of Lords and does not include the Court of Appeal and those courts below.

The Court of Appeal is still bound by the decisions of the House of Lords and their own previous decisions. The exceptions for departing from their own decisions is only permitted in accordance with the rules as laid down case of Young v Bristol Aeroplane (1944):

1. Where two previous Court of Appeal decisions are in conflict;
2. Where previous decisions of the Court of Appeal had been overruled by the House of Lords (HL), then the HL’s decision is binding; and
3. Where the previous decision has been given per incuriam.

In Miliangos v George Frank (1975), the Court of Appeal departed from the HL decision of Re: Havana (1960) by awarding damages in foreign currency. When the case went up to the House of Lords, the their Lordships held that the Court of Appeal had acted incorrectly, but nevertheless proceeded to depart from Havana.

The House of Lords were on number of occasions, unhappy over the manner of which the Court of Appeal seemed to defy the directives of the practice direction and the fundamental doctrine of stare decisis. Lord Chancellor, Lord Hailsham expressed his concerned on this matter when he rebuke the Court of Appeal’s decision in the case of Broome v Cassel [1971], that:

“It is not open to the Court of Appeal to give gratuitous advice to judges to ignore decisions of the House of Lords ... the fact is, and I hope it will never be necessary to say it again that in the hierarchical system of Courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tier.”

However, judges do have many ways to depart from precedent. They can do it by distinguishing the material facts of the previous and the present cases. A superior court may also reverse the decision of an inferior court, and a superior court can also overrule the decisions of an inferior court.

Another way is for judges to look into the provisions of the Community law and the European Conventions for Human Rights (ECHR). With the enactment of the European Community Act 1972 and also the Human Rights Act 1998, Community law now prevails over domestic laws, and the courts were directed to comply with the Community laws and Convention rights. Under s. 3(1) of the Human Rights Act 1998, judges have a duty to strive to find a possible interpretation compatible with Convention rights. Under ordinary method of interpretation, a court may depart from the language of the statute to avoid absurdity. Undoubtedly, a court must always look for a contextual and purposive interpretation. Where the statute is inconsistent with Convention rights, certain courts may make declaration of incompatibility (s. 4 HRA 1998). In the view of Lord Steyn (R v A (No.2) [2001], a declaration of incompatibility should only be a measure of last resort.

Various later cases also show a positive development in English domestic law through its judicial decisions.

In the case of Airedale NHS Trust v Bland (1993), the question raised was whether a life support machine should be switched off when a person was in a persistent vegetative state. Although it contravenes the Convention rights (right to live), the House of Lords allow the termination.

Similarly, in Re A (2000), pertaining to a Siamese twin, the House of Lords allowed the operation to proceed as recommended by the hospital despite objections from the parent. The House of Lords took into consideration the state of law on murder and the defence of necessity, and decided that a balance had to be struck on some very difficult issues.

In another example in the case of R v R (Marital rape), the House of Lords abolished husband’s 250 year-old immunity from criminal liability for raping his wife. Their lordship justified the decision on the basis that the case was not concerned with the creation of a new offence but with their duty to act in order to remove from the common law a fiction which had become unacceptable. This decision was an example of the ability of the common law to evolve ‘in the light of changing social, economic and cultural development.

Being free of the shackles of binding precedent, the House of Lords is uniquely placed to develop English domestic law through its judicial decisions. In a way, it does prove that there are positive developments of allowing the common law to continually adapt and develop. As proffered by Lord Goff, ‘while certainty is much desired, the laws need to be flexible to meet the needs of the ever changing society.

The judge must attach great weight to previous decisions, not only for practical and political reasons, in order to maintain sufficient certainty in legal doctrine and to avoid usurping the legislative function, but also for theoretical reasons. Those decisions provide, in general, the best available evidence of the collective wisdom of the common law.

Judges must subordinate their own individual reasoning and values to those enshrined in the law. On the other hand, the reasoning and values of the law are greater not only than those of the presently deciding judges, but also of any of the precedent-creating judges of the past.

Hence, the theory of common law does not dictate a slavish adherence to precedent. Even where prior judicial decisions are thought to state accurately the common law, a later judge is bound not by those decisions but by the principles implicit in them (Postema 1986). Further, while classical common law thought denies that judges are creative as lawmakers, they are not merely passive as lawfinders (Levy-Ullmann). Judges are in fact the privileged representative of the community, entrusted with its collective legal wisdom and authorised to draw on it constructively to find solutions to novel issues raised before the court.

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