Precedent

The doctrine of binding precedent did not become firmly established until the second half of the 19^th century. Judges merely tried to do justice in each individual case. This system lacked certainty and criticism was strong. From about 1700 the court began to pay increasingly greater respect to its previous decisions. Nowadays the volume of statute law is increasing rapidly, but the importance of case law is not decreasing. When a judge is faced with a case where there is no existing precedent and no provision in an Act of Parliament, the judge must of necessity create new law. Precedent is therefore a very important source of law.

In all countries, at all times, the decisions of courts are treated with respect, and they tend to be regarded as ‘precedents’ which subsequent courts will follow when they are called upon to determine issues of a similar kind.

This reliance upon precedent has been both the hallmark and the strength of the common law. Its rules have been evolved inductively from decision to decision involving similar facts, so that they are firmly grounded upon the actualities of litigation and the reality of human conduct. And new cases lead onwards to reach forward to new rules. Its principles are to employ a popular phrase ‘open ended’; they are not firm and inflexible decrees. This characteristic of the common law contrasts with the European civil law.

Thus the task of the courts is deductive: to subsume the present case under the mantle of the generalized and codified rule. In principle this method carries the danger that the encoded rule may, being the work of a theorist divorced from reality, be out of touch with actual needs; and certainly, as noted above, in course of time it may become so, and thus may require judicial adaptation to meet changed conditions. But in practice many codes are really restatements of rules previously embodied in the opinions of jurists or from case law or from custom or from some other tried and tested source.

Although the approach to legal decision is on the one hand inductive at common law and on the other hand deductive in the Continental civil law, in reality the two systems are not quite so divergent as might appear. One thing, however, which is distinctive of the English system is that because the English judge has, through precedent, power to make new law his position in the legal system is central. Another salient feature of the English system is the doctrine of the binding case. By this doctrine the authority of the courts is hierarchical; a court which is inferior in authority to another court is obliged to follow (‘bound by’) a court of superior authority if called upon to decide upon facts similar to facts already tried by the superior court.

Дата добавления: 2015-07-11