“To the timorous souls I would say in the words of William Cowper:
Ye fearful saints, fresh courage take,
The clouds ye so much dread
Are big with mercy and shall break
In blessings on your head.
Instead of ‘saints’ read ‘judges’. Instead of ‘mercy’ read ‘justice’. And you will find a good way to law making.”
As always, the legendary common law jurist Lord Denning, controversial ‘people’s judge’, expressed his judgement in its typical Denning fashion in the case of Siskina v Distos Compania Naviera SA. (1977) . The progressive development of the law, according to Denning in Candler v Crane, Christmas ; Co (1951) , is to be credited to the judicial creativity and courage of bold spirit; timorous souls showed blind allegiance to existing rules and precedent – the ‘dead hand of the past’ – and in doing so, served a sterile, not a constructive, role in the law, which will lead us back to “the reign of King Henry II” .
In the words of Lord Denning (then Denning LJ), “if we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both.” The position of Lord Denning was amplified by Lord Atkin in United Australia Ltd v Barclays Bank (1941) where he asserted that “when these ghosts of the past stand in the path of justice clanking their mediaeval chains, the proper course for the judge is to pass through them undeterred.”
As implicit in Lord Nicholls’ observation, the development of the common law has been going on since the reign of Henry II. Although the notion of precedent initially had more to do with procedural form than juridical substance, the concept of ‘stare decisis et non quieta movere’ which means ‘to stand by (or adhere to) decisions and not to disturb what is settled’, or in other words let sleeping dogs lie, is of very long standing.
More often than not, this doctrine was being described as the “life-blood of every legal system” and in practice, it refers to the fact that, within the hierarchical structure of the English courts, a decision of a superior court will be binding on any inferior court. In England, due to the Judicature Act of 1873 to 1875 , a proper judicial hierarchy of the courts was created enabling the decision of the House of Lord which is now the Supreme Court of England after the enactment of section 23 of the Constitutional Reform Act 2005 which begin its work on 1 October 2009 and was officially opened by the Queen on 16 October 2009, to be binding on all courts.
Colloquially, “the life of the law has not been logic; it has been experience.” per Oliver Wendell Holmes Jr. Miles Kingston put it rather more cynically in Punch: “judicial precedent means a trick which has been tried before successfully.” Evidently, the maxim of ‘like cases should be treated alike’ which was described by Lord Hoffman as a “general axiom of rational behaviour” , has been deeply embedded in the English law and judges are expected to “shrug his shoulder, bow to what he regards as inevitable and apply the law” . The law implicit in Lord Edmund Davies’ judgement are basically referred as ratio decidendi , which is Latin for ‘reasons for deciding’; it is the part of the decision which constitutes the binding precedent. Sir Rupert Cross and J. W. Harris, in the leading English monograph on precedent, define ratio decidendi as “any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.”
CONSIDER – “not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement”
As Twining and Miers pointed out, “talk of finding the ratio decidendi of a case obscures the fact that the process of interpreting cases is not like a hunt for buried treasure, but typically involves an element of choice from a range of possibilities.” Evidently, there are some cases in which it is extremely difficult, if not possible, to ascertain precisely the ratio of the case, and to distinguish the ratio from obiter dicta, which is Latin for ‘other things said’; it is the part of the decision which constitutes the persuasive precedent. On the other hand, statement of law on points which are fully argued by counsel and considered by the judge, but which do not technically play any part in determining the result, are sometimes termed as ‘judicial dicta’.
Lord Asquith once recounted a joke: “the rule is quite simple: if you agree with the other bloke, you say it’s part of the ratio; if you don’t, you say it’s ‘obiter dictum’, with the implication that he is a congenital idiot.” It is generally perceived that in certain situations, the obiter dicta and judicial dicta are merely a smokescreen for judges to develop law. This may be seen as an outcome of the declaratory theory of law, in which judges were seen as merely stating rather than making the law. Thus, the judges in the court that overrules a precedent made by a lower court are understood to be merely removing a mistaken understanding of what the law was, rather than actually changing that law. Equally, when a higher court ruled that a previous interpretation of a statutory provision was wrong, there was no question of that court changing the law: it was merely correcting an error of interpretation.
The stance which was affirmed in the case of London Tramways Co v London County Council (1898) – “certainty in the law to be more important than individual hardship” was later dismissed on the saying that certainty in the law may be more important than individual hardship but in the cost of bringing great hardship to the remaining. The modern doctrine of precedence can be seen to have departed considerably from this position, especially with the advent of the Practice Settlement 1966, which contra to London tramways, allowed Lords to depart from its previous decisions. In the present state of affairs, Supreme Court judges ‘have considerable leeway to expand on or distinguish the past conclusions of their colleagues’.
However, it is pertinent to emphasise that the Practice Statement was not meant for the judiciary to usurp the legislators’ function and profane their own, but rather it was used by the judges when it ‘appears right to do so’. Cases such as Jones v Secretary of State for Social Services (1972) had shown great reluctance in applying the Practice Statement despite the Law Lords had admitted that the previous precedent, Re Dowling (1967), as being aberrant, indeed as heretical. Instead of overruling it, the Law Lords prefer the approach of distinguishing it as they regarded that certainty would be impaired unless the practice of overruling was used sparingly. Despite being begrudged for using the Practice Statement, several cases such as Knauer v Ministry of Justice (2016) had demonstrated that the Practice Statement will be used to react “to new events and new ideas, and…. provide the citizens of this country with a system of practical justice relevant to the times in which they live.”
Similarly, with the same intention of mitigating any bad decision made in the past, the Court of Appeal was also granted the opportunity to depart from its own previous decision if it satisfied the few exceptions created in the case of Young v Bristol Aeroplane Co. Ltd (1994). However, the exceptions given was still not powerful enough to stop the bad laws from passing. Cases such as
Thus, several attempts had been made by Denning to
Nevertheless, in light of Lord Bridge, “if a serious matter distorted the law, the sooner it is corrected the better”, however, overrule may not be the master key that could unlock every door, other mechanism such as distinguishing or even reversing should also be taken consideration by those ‘bold souls’ or vigilante judges to develop the law and serve justice when is required depending on the case.
In Understanding Media: The Extensions of Man (1967), Marshall McLuhan stated that “when faced with a totally new situation, we tend always to attach ourselves to the objects to the flavour of the most recent past. We see the world through a rear-view mirror. We march backwards into the future”. In the eyes of law, this so called “totally new situation” might be referred as original precedent, this is where judges develop new arears of law by reasoning by analogy, in the words of Lord Atkin, the precedent was formed by “applying an establishing rule of law to new circumstances which are analogous to the circumstances in which the established rule was framed.”
On the other hand, it could be vindicated that in society where parliamentary legislation is increasing exponentially with the complexities of a pluralistic society the impact of judicial precedent is dwindling, particularly in the areas of law that were traditionally purely judge made, such as tort and the creation of the Occupiers Liability Act, which to a large extent codifies and developed the House of Lord case of BRB v Herrington (1972).
However, judges have for a long time had to use rules of statutory interpretation to ensure areas of ambiguity often arising from the creation of Acts were interpreted in the light of the current case. So, a series of rules have been developed to ensure a fair a consistent approach is adopted across cases as once such an interpretation is made in higher courts, such as the Supreme Court, then the doctrine of precedent states all lower cases through stare Decisis are bound by such decisions.