Introduction
There are several sources of law available in the legal practice, while the role of the judicial precedents is the most important one in the common law systems as the United Kingdom. In fact, all legal systems attempt to follow previously accepted judicial opinions as judicial precedents for creation the similar pattern around the dispute or particular case. In terms of the legal framework existing in the United Kingdom, the notion and nature of the judicial precedent should be considered as this particular jurisdiction is familiar with the doctrine of the binding precedent as the source of law and power of judicial authorities. Besides, the importance of the judicial precedents should be addressed from the perspective that the law itself represents the system that is subject to the permanent changes in the society. In this regard, some experts state that the power of the judicial precedent is diminishing so that the judges in new cases should not rely on the previous decisions. From this perspective, the paper addresses the nature and scope of the judicial precedent as it exists in the United Kingdom, the United States, contains overview of its force. Accordingly, the paper dwells on the power of the judges to depart from the previously delivered decisions in the determination of new cases within court proceedings.
Overview of Notion of Judicial Precedent
For the purposes of this study, it is highly important to start with analysis of the notion of the judicial precedent as it is accepted in the legal sphere. With that, the doctrine of the judicial precedent takes its origin from the case law that exists in the legal sphere. The legal experts once came to the conclusion that for the purposes of the achievement of any level of certainty in the legal sphere, one case containing the determination of particular issues should be applied to the similar case in future. The doctrine of judicial precedent arises from the primary pillar of legal system based on which the like cases should be treated similarly. In addition, this doctrine is grounded on the stare decisis principle having origin from Latin legislation due to which the lawyers should follow previously accepted decision without any power to step aside of the adopted approaches. The acceptance of the role and importance of the case law has become quite popular in several spheres of activity of the individual and business units so that some judges prefer to save time instead of consideration new case. This implies that judicial authorities opt out for application the previously accepted decision in similar case rather then new approach can be defined. From one perspective, this operation of the judicial precedents simplifies the functioning of the judicial system of the common law systems. However, the society is developing as well as circumstance of the case become different. In this regard, it is seemed logical that even the judgments in the case law should be found as outdated to some extent within the lapse of particular amount of time. Therefore, the common law system preferably consists of the case law so that the judges in the examination of new cases bear the responsibility to rely on the reasoning of the judicial authorities in the previous cases.
In contrast, the power of the judges in relation to the creation of the rules of law should be considered. In fact, the judges operating in the United Kingdom are regarded as the authorities that have power to declare the law, while the legislation function is referred to the parliament to the country. In this regard, for the evaluation of the role and binding force of the precedent, the causes for such obligatory nature over the judges should be considered. This statement implies that the judges should take intro account the hierarchy between the judicial institutions so that the decisions of the Supreme Court of the country must be followed by lower instances. Consequently, one should state that the doctrine of the judicial precedents is dependent to the position of the court in the entire legal system of the state. With that, it is necessary to accept the fact that the judgments of the court referred to the higher instance have binding forcer over the lower courts.
However, not all precedents have binding force. There are some decisions that are treated as persuasive judgments. These opinions may be received upon the following circumstances:
The judgments of the courts existing in the low levels of the judicial system should be regarded as persuasive due to the fact that they do not have mandatory nature;
The judgments of one judicial authority are used as persuasive in the determination of next cases by this particular institution;
Judgments of other judicial institutions existing in the common law system (Clark, 2015).
It it undisputable fact that the judgments of the Supreme Court and House of Lords in the United Kingdom have the primary influence over the practice of other judicial institutions. At the same time, the House of Lords has measured the exceptions due to which this state body have power to depart from personal decisions for the declaration of law and its interpretation. In particular, in 1966 the House of Lords in case Practice Statement [1966] 1 WLR 1234 concluded that permanent compliance with the previous decisions may serve the role of the cause of injustice. Therefore, this body should be able to depart from personal decision to the removal of the threat of the exposure to injustice in the legal system of the United Kingdom.
For the purposes of the understanding the exact structure of the judicial system of the United Kingdom with the application of the judicial precedent, one should be familiar with the next structure of the courts within the country:
The European Court of Justice is regarded as the primary institution for the judicial authorities of the United Kingdom. This implies that judgements of the European Court of Justice should be binding to the Supreme Court of the United Kingdom and other courts in compliance with current legislation of the state as the European Communities Acts of 1972.
The House of Lords is the most important judicial institution which followed the stare decisis approach up to 1966. The lower courts have no power to depart from the judgments delivered by the House of Lords.
Court of Appeal should follow the decisions of the House of Lords regardless the fact that the judiciaries of this institution may not agree with the approach of higher authority.
The High Court shall comply with the decisions accepted by the Court of Appeal and House of Lords, while it is not necessary to follow personal decisions adopted din the previous years.
Crown Courts and their judgments are regarded as persuasive so that they can be used for the interpretation of the rules of law on certain subject-matter (Hitt, 2016).
Therefore, one may see that it is general practice within all legal systems that the decisions of the higher judicial institutions should be respected. Accordingly, the principle of judicial precedents is appraised in several international organizations and international judicial institutions. In particular, the International Court of Justice operates by the previous decisions for the interpretation of new case, while the World Trade Organization presents the evidences that usage of the case law in its activity plays significant role in the development of stability of the legal system. The performance of these bodies and several others contribute to the role of the judicial precedent in the legal practice as the important source of law.
Besides, there are several instruments that are available for the judges to step aside from the previous decisions within the legal framework. These methods are the following:
Distinguishing;
Overruling;
Reversing (Humble, 1921).
With regard to the invocation of the distinguishing by the judges, one should keep in mind that the previous judicial precedent will have binding force over the judges in case the merits of the dispute, environment and its pattern are similar. In addition, the subject-matter of the cases should be the same for the application of the judgment of previous case. Besides, the distinguishing of the case based on its facts or due to the subjects involved should be treated as the legal instruments available for the judges with the purpose of ignoring the existing judicial precedent. For the purposes of this method, the facts of the case should be found as different to the merits of the previous dispute in the manner that the court will not be able to establish relevant basis for invocation of the previous decision. This method of the departure from the judicial precedent was established in case Balfour v. Balfour in 1919.
The other type of the departure from the biding precedent is overruling of the decision. This method defines that the judge and the court in general has relevant scope of the power in order to overrule decision accepted in previous years by the court operating in the lower level. This method may be used by the judicial institution in case the previous court erred in the declaration of the law as well as it did not manage to apply certain provisions of the legislation in proper manner. Furthermore, the new tribunal may agree that applied legislation is not useful in new case so that overruling may be applied for the realization of the principal goal of judicial system as maintenance of justice. Accordingly, overruling may take place in case the court operating as higher one within the hierarchy system of the judicial authorities of the country deems it is necessary to remove the binding force of previously adopted decision. This method was developed in case R. v. R. in 1991. Meanwhile, the overruling may be used on behalf of the same judicial institution in case the applied rules of legislation have lost their meaning and are outdated in terms of the standards of contemporary community.
The last legal option for the judges to depart from the binding judicial precedent is reversing. This method covers the activity of the higher court which has power to depart from the decision accepted by the court of lower instance regarding the appeal of the case. However, this method is not quite popular as the abovementioned.
Meanwhile, the departure from the previous decisions is quite interesting on behalf of the House of Lords of the United Kingdom. This institution has not amended its decision since 1966 with the adoption of the Practice Statement. Although, this approach of the House of Lords is subject to the critical analysis as some experts believe that this power should be limited to particular extent with the purpose of achievement of certainty in the legal system. In fact, one of the functions of the judicial precedents is the serving basis for the predictability of the legal system. Due to the existence of the case law, one may expect the final outcome of the case in the civil proceedings, trials in the criminal area, etc. In case all judicial institutions opt out to depart from the provisions of the case law, the stability of the legal system will be lost. Moreover, with the existence of the judicial precedent, some offenders avoid the exposure to the criminal activity as they aware of the possible consequences upon the committing of certain crime. With the availability of the judicial precedent, the business units have opportunity to calculate the profit and losses which will take place upon the consideration of the case by the judicial authorities of certain jurisdiction. Consequently, the departure from the decision adopted upon per incuriam should be addressed as well. This decision is delivered due to the issue of carelessness of the judges or certain mistake. This rule defines that the circumstances of the activity of the judges should be considered with the purpose of the identification of the factors influencing the adoption of the decision with mistake.
Conclusion
The judicial precedent is primary feature of the common system of law. The existence of this source of law contributed to the formation of certainty in the legal system. The analysis of previous decisions may be useful for the expectation of the final judgment in particular case. Furthermore, the application of the case law during the trials and other proceedings adds value to the uniformity within the legal system. This implies that majority of the similar cases are considered in the same way. This approach ensures that justice will continue to exist within particular legal system. Besides, there are some instruments for the departure from the binding nature of the judicial precedents in case relevant circumstances take place. In addition, the operation of the judicial precedent ensures that the decisions of the higher judicial institutions should be respected accordingly by the courts of lower instances for the proper functioning of the legal system of the country will common law system.
Bibliography
Clark, T. (2015). Scope and precedent: judicial rule-making under uncertainty. Journal of Theoretical Politics.
Hitt, M. (2016). Measuring Precedent in a Judicial Hierarchy. Law & Society Rev, 50(1), pp.57-81.
Humble, H. (1921). Departure from Precedent. Michigan Law Review, 19(6), p.608.
