Professional Documents
Culture Documents
Judicial
Precedent
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1.
2.
3.
X INTRODUCTION
In a dispute between two parties, the court must first establish what happened. The
facts are usually determined by the trial judge. Although in some countries jury may
be used, in Malaysia, it was abolished in the 1980s. Once the facts are determined, the
judge will then make the application of law to the facts to determine which party
would succeed. The doctrine of judicial precedent is important because it is the ratio
decidendi of a previously decided similar case, decided by a higher court to the
current facts that will decide the solution of the case.
6.1
JUDICIAL PRECEDENT
SELF-CHECK 6.1
What do you understand about judicial precedent? Does every law system
have this form of doctrine of precedent?
The weight or authority of rules of law derived from cases may vary. These
relative weights are determined by the doctrine of precedent. Nearly all legal
systems (including civil law systems) have some form of a doctrine of precedent,
though its provisions may vary. Even a legal system which explicitly prohibits
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the citation of earlier cases in court could be said to have a doctrine of precedent
in that it has a rule which regulates the use of precedents.
6.1.1
Stare Decisis
Countries which derive their legal systems from the English common law are said
to employ the doctrine of stare decisis. They are regarded by many as having a
strict rule of precedent, although there is a substantial body of opinion that, in
fact, the rule is not applied as strictly as the theory indicates.
The general rules of the doctrine of precedent in common law systems can be
summarised as shown in the following Figure 6.1:
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(b)
(i)
Only the ratio decidendi (the judges decision on the material facts) of
a case is binding
See the case of Carlill v Carbolic Smokeball Co (discussed under ratio
decidendi).
(c)
(d)
The courts at the top of the hierarchy normally treat decisions of lower, but
still superior, courts within the hierarchy as highly persuasive. Decisions of
superior courts within a different hierarchy, while not binding, may also be
considered highly persuasive. For example the Federal Court in the case of
Malaysia National Insurance v Lim Tiok [1997] 2 MLJ 165 adopted the
criteria laid down by the House of Lords in Food Corporation of India v
Antclizo Shipping Corporation [1988] 2 All ER 513.
In addition, the doctrine means that appellate courts are either bound by
their own decisions or will depart from them only with reluctance. For
example in the case of Koperasi Rakyat v Harta Empat [2000] 2 AMR 2311
in this case, the defendant a co-operative society appealed to the Federal
Court against a decision of the Court of Appeal in that a charge created was
void and unenforceable. This charge was in contravention of s 133 CA 1965
(Act 125). In deciding the case, the Court of Appeal disregarded the
decision of the Federal Court in Co-operative Central Bank v Feyen
Development [1995] 3 MLJ 313 (Feyen no 1). The plaintiff, a private
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121
6.2
Precedents are used in areas other than the legal system. Decision making bodies
of all kinds may be faced with problems involving conflicting principles on which
a determination must be made.
In reaching a solution they will take into account previous decisions in relation to
similar problems and they will be aware of the example they are setting for the
future.
6.3
Yet, if the terms of the law are clear, there is no way for a judge who conforms to
the doctrine of precedent, particularly one in a lower court, to avoid applying it.
A contrary argument is that the legislature has the duty to remedy such an
injustice by enacting remedial legislation.
On the other hand, most cases coming to appellate courts for decision allow
judges considerable scope for avoiding precedents which would result in
injustice or an otherwise inappropriate decision.
Some appellate courts are more adventurous than others more responsive to
suggestions from academics, as well as practicing lawyers and, in some
circumstances, are probably more prepared to accept that judicial creativity is
desirable.
The composition of the appeal court bench is all important in producing such an
attitude.
ACTIVITY 6.1
In Young v Bristol Aeroplane Co. Ltd, it was shown that relevant decision
or rule can be followed and considered although it was not binding.
Identify what are other rules of doctrine of precedent in common law
system?
6.4
6.4.1
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variety of forms and there is no way of predicting with certainty the form which
will be accepted by a later court.
Among the reasons for this difficulty are the following:
the ratio (or rations if there is more than one) may be difficult to identify;
it may be difficult to distinguish the ratio from the obiter dicta in the case.
(a)
In many other cases the relevant legal principles have long been
determined, so that once the facts have been established the application of
the principles is straightforward whereby, the principle that one way to
create a contract is by agreement with consideration and the intention to
create legal relations is one such well-established rule. Neither of these sorts
of case will set a precedent to be followed in later cases (the one, because it
relates only to a set of facts and not to law, the other because the law is well
settled). Neither, therefore, has a ratio which will be employed in later
cases. It is in cases in which the facts do raise a legal issue that the judge's
decision becomes a ratio having a precedent value.
For example, have a look at the case Carlill v Carbolic Smoke Ball Co [1893]
1 QB 256. In that case, it was established that the company had advertised a
product known as a 'smoke ball' which was supposed to prevent those who
used it from catching influenza.
2.
Each of the decisions above is a ratio of the case and is, therefore, an
authoritative statement of that principle of law for application in later,
similar, cases.
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All three Lord Justices of Appeal gave judgements in favour of Mrs. Carlill
although slightly different reasoning, arguments and examples was given
by them.
(b)
Level of Generality
The way in which the rule of law is stated by the judge may not, however,
be the rule accepted as the ratio by later courts. For any principle of law
from one case to be applicable in later cases which are not identical, it will
almost certainly have to be stated at a level of greater generality.
The rations from Carlill's case, given above, were stated at the lowest level
of generality. They can be restated at a higher level of generality in the
following manner:
in cases of unilateral offer, the offeree's performance of the condition
constitutes acceptance of the offer; and
Over the years the courts will have to deal with cases which are on the very
edge of the scope of the principle and to decide whether or not the rule is
applicable.
Gradually, in this way, the parameters within which the rule is to operate
will become set and there will no longer be a need for people to resort to
litigation to determine the effect of that particular principle although it may
always be challenged.
(c)
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The distinction between ratio and obiter, therefore, can be stated thus;
pronouncements of legal principle necessary for the judge' decision on the
established facts of the case are the ratio or rations decidendi of the case,
whereas pronouncements of legal principle which are not strictly relevant to
the issue or issues will be obiter dicta only.
It must be appreciated, however, that not every statement of a rule of law
by a judge is necessarily ratio or obiter. Frequently, during the course of the
judgment the judge will restate and discuss rations from existing cases. It is
simply a recitation of the development of the relevant legal principles where
it is a foundation for the judge' reasoning, but those statements are neither
ratio nor obiter in the case before the court.
Sometimes it is very hard to distinguish between statements which are ratio
or obiter and those which are restatements of principles in earlier, slightly
different cases.
In the case of Carlill v Carbolic Smokeball, Bowen LJ gave the legal answer
to a set of facts which were not in issue in the case. They are thus obiter
dicta. The learned judge did this to assist him to clarify the answer to
Carlill's case.
The words of this judge could be used by a council (if ever such facts were
in issue in a court case) as persuasive precedent. On 1973, Carlills case was
applied in Peck v Lateu but was distinguished in AM Satterwaite & Co v
NZ Shipping Co (1972).
ACTIVITY 6.2
What is the major difference between obiter dictum and ratio decidendi?
Give supporting cases to your explanation.
6.4
6.5.1
The real focus of attention of contemporary lawyers should be upon the extent of
legal creativity, its proper occasions and the techniques that may be used to
achieve and justify it. When a dispute between two or more parties comes before
it, a court must first attempt to establish what happened. In some trials the
relevant facts are determined by the presiding magistrate or judge.
In cases where a jury is used, though, the jury is responsible for making the
decisions on the facts, while the judge decides the law. Once the facts have been
established, it falls to the judge to apply the law to them in order to determine
which party should succeed.
According to the the President of the New South Wales Court of Appeal, Kirby J,
the learned judge put it clearly when he said:
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Judges do have to make choices but some of them have more scope in that
endeavour than others. In considering this point, a distinction should be made
between judges at first instance (that is, judges in inferior courts, or single judges
in superior courts), and those in appellate courts.
While a judge in an inferior court, ought to be aware of the contemporary values
of society and what the average person would consider to be the appropriate
decision in that context, generally speaking, judges of first instance are obliged to
follow 'binding authority' in the form of decisions of a higher court in the same
hierarchy on a similar issue. If, despite a faithful adherence to the doctrine of
precedent, the judge's decision is considered by one or both of the parties to be
'wrong' in law, an appeal can be brought against it to a higher court. If the appeal
court decides that the existing rule, which was applied in the lower court, is
indeed wrong then it can change that rule either totally or in part.
The decisions of ultimate courts of appeal, however, cannot be changed by a
higher court. Such superior courts normally consider themselves free to overrule
their earlier decisions in the appropriate circumstances.
The notes above have raised several questions. They include in Figure 6.3.
the court. In other cases the jury, or the judge if no jury is empanelled, will
decide the facts.
How Does a First Instance Judge Decide What is the Legal Rule Binding the
Court Given the Established Facts of the Case?
As has already been explained, under the doctrine of stare decisis, if a
superior court in the same hierarchy has previously made a decision on the
question of law raised by the same or similar facts, the first instance judge is
bound to follow the earlier decision. However, there several techniques in
avoiding precedents that would otherwise be binding. If the judge decides
not to follow such a precedent:
he or she must expressly distinguish it (that is, explain how the earlier
case is different from the current one and therefore not applicable); or
the later decision will be deemed to have been made in ignorance of the
earlier one. Such a case is said to be decided per incuriam (literally
'through want of care') and incapable itself, of constituting a binding
authority for later cases.
Decisions are said to be per incuriam where they are given in ignorance or
forgetfulness' of:
a inconsistent legislative provision; or
a case which is binding on the court which made the decision: Morelle
Ltd Wakeling [1955] 2 QB 379 at 406.
(c)
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If the First Instance Judge Decides there is no Relevant Authority, What Rule
Should He or She Apply?
If, however, no earlier decision exists on, or analogous to, the matter before the
court, how does the judge find the appropriate rule? At one time, legal theorists
used to subscribe to what was called the 'declaratory theory of law'. Under that
theory, judges did not make law even if the issue before them had never been
dealt with before. Rather, by looking at existing common law and statute law
principles, they were said to have extracted a rule that was held always to have
existed but which had remained unused, waiting to be declared at the
appropriate moment. By the end of the eighteenth century, however,
philosophers such as Bentham and Austin had exposed that theory as a fiction
and had asserted that in some cases judges did make law when making their
decisions.
More recently, Lord Reid, a Law Lord, has described the declaratory theory
as a 'fairy tale'. He said this:
Now it seems that most, if not all, judges, other lawyers and thinkers accept
that judges do make law. Indeed, many people would agree that, in the
appropriate circumstances, it is essential that they do so.
(d) What Factors are Taken into Account by Appellate Courts in their DecisionMaking?
Everything stated above in relation to courts of first instance applies, with
some qualification, to appellate courts. Under the doctrine of stare decisis,
the Courts of Appeal and the High Court are bound by decisions of the
Federal Court. Federal Court, itself, although not strictly bound by its own
previous decisions, is reluctant to depart from them without cogent reasons.
As Sir Anthony Mason CJ has said:
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In some decisions, judges openly admit that they have reached their
decisions on the basis of principle and policy in preference to the doctrine of
precedent. In other cases, a judge will say that he or she is adhering to the
doctrine of precedent but in fact, if the decision is analysed, it can be seen
that the reasoning has been heavily influenced by principle and policy. Such
an outcome is achieved by the clever use of techniques of interpretation and
distinguishing in avoiding precedents.
These three influences which are principle, policy and legal authority will need
further attention. The following are the matters that are needed to be
considered.
(i)
(ii)
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6.5.2
It is not uncommon where; there are occasions where a judge is convinced that
the rule in an earlier decision should not be applied to the case before the court
even though prima facie, the precedent is binding or highly persuasive. In these
circumstances, the judge should expressly avoid the precedent and explain why it
is not being followed. If a precedent which is prima facie binding is simply
ignored, the decision may be considered to be per incuriam.
There are many ways of arguing that a precedent should not be followed given
the flexibility of language and the complexities inherent in the concept of ratio
decidendi. Some of the most common methods used to avoid precedent are to
hold that are indicated in Figure 6.4.
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(c)
(d)
(e)
ACTIVITY 6.3
It is stated that changed social condition is one method to avoid precedent.
Given an example a crime rape in marriage where two hundred years ago,
common law gave a precedent that a husband could never be found guilty
of raping his wife. However, social condition and value have changed and
this principle is no longer acceptable. By referring to any law books, find
any principles that are unacceptable in today's society condition.
EXERCISE 6.1
Give the meaning of ratio decidendi and obiter dicta. Is there any
distinction between these two elements?
6.6
Some of the examples given to illustrate the various techniques could just as
easily be used with one or more of the other techniques. The appropriateness of a
particular case as an example depends on an individual's interpretation of that
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137
case. Suggestions made may help readers to think about legal decisions, even
relatively old ones, both critically and inquiringly. Discussion should be focused
on the limits and justifications of the practice.
Judges in the superior courts need to keep in mind that they are not elected, as
the legislators in parliament are, and that they do not have the resources available
to law reform commissions or parliamentary committees. As long as they
recognize those limitations, however, the creative role that they have increasingly
been undertaking would seem to be a necessary one.
If courts were to go too far, either by usurping parliament's function in a major
way or by making a law with unforeseen but far reaching bad consequences, it is
always open to the parliament to change it. Such a process of law creation,
however, would be inefficient and would also be damaging to the reputation of
the courts. The task of the current generation of judges, academic lawyers and
legal practitioners is to help discover that boundary.
When faced with a case, Judges will have to make an informed decision.
However, some judges have more choices than the others.