Judicial precedent

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. This characteristic of the common law contrasts with the European civil law which is derived from a code; that is, from an enacted body of rules either (as in the case of Justinian’s or of Napoleon’s legislation) embodying the whole of, or some considerable part of, the law, or embracing some special aspect of it. Thus the task of the courts is deductive: to subsume the present case under the mantle of the generalized and codified rule.

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.

The precedents formed by decided cases are, thus, the ‘anchors of the laws’. A practitioner who is asked to consider a legal matter will therefore look to the reported decisions of the courts; and he will do this even though the point in issue is regulated by a statute, for, as has been explained, statutes are interpreted by the courts, and a decision which is concerned with the interpretation of the statute is just as binding as any other decision.

It must not, however, be imagined that the law is always discoverable by the simple process of looking up, and finding, the right precedent. For facts are infinitely various and by no means all cases are exactly covered by previous authority. Quite the reverse, the facts in issue often resemble two or more divergent authorities. In these circumstances the courts therefore have freedom of choice in deciding which of the divergent authorities to ‘follow’.

Further, cases of ‘first impression’ sometimes arise; cases arising upon facts which bear no resemblance to the facts of any previous case. When the judge rules in such a case he legislates, because future courts must usually ‘follow’ him.

The judges have a field of choice in making their decisions. But they do not exercise their discretion in an arbitrary way; they rest their judgements upon the general principles enshrined in case-law as a whole. These principles have been evolved by the courts through the centuries.

Thus in a sense the history of the common law (as opposed to statute law – for statutes are sometimes arbitrary and they have often wrought injustice) is the story of the evolution of the judges conception of justice realized in the form of rules of law intended to be general in their application and as easily ascertainable as possible.

Дата добавления: 2015-11-14