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![4 THE THEORETICAL DIMENSIONS OF THE DOCTRINE OF PRECEDENT Many legal theorists and practitioners have attempted, over the years, to give precise definitions of the English doctrine of precedent. Unfortunately for law students, there are no simple shortcuts to understanding the practical everyday working of the doctrine of precedent. However, a few theoretical ground rules can be established, which at least place the operation of the doctrine of precedent within a context: (1) judges at all levels of the court hierarchy must follow decisions of the higher courts; (2) judges in the higher courts must follow previous decisions of their own courtor that of a higher court if the case was similar, and does not fall into any allowed exceptions. It is accepted, however, that in the Court of Appeal, a more relaxed attitude can be taken in relation to criminal appeals; (3) since a Practice Statement by the Lord Chancellor in 1966, judges in the House of Lords have the freedom to decline to follow their own previous decisions (Practice Direction (Judicial Precedent) [1966] 3 All ER 77). This freedom is exercised sparingly—but in a more relaxed way in its criminal jurisdiction than in its civil jurisdiction. Much depends on the definition of similar. How similar must a previous case be before it becomes a precedent to be followed in a current case? Notice, again, how everything turns on language and the meaning of words. The facts of cases usually vary in some way Law is about life and life rarely replicates itself exactly, but trends and degrees of similarity can be noted. The following issues need to be dealt with: (1) must the law be similar now as then? (2) what happens if there are small fact differences? (3) what if there are a range of small differences—is the case sufficiently similar? There are no definitions of similar for the purposes of the doctrine and this is where the judge can bring subjective influences into the decision making processes. He or she can determine what ‘similarity’ is. In addition, how can the reason for the case be extracted? Similar cases must be decided in accordance with the same reasoning process. The actual doctrine as it has developed refers to keeping to the reasons for deciding past cases. How does one find the reasoning? Wambaugh, a theorist working in America in the late 19th century, suggests that one way of ascertaining the reason for the decision (ratio decidendi) is to look for a general rule of law in the judgments and test whether it is foundational for deciding the case by translating it into the negative form and seeing if the case would then have been decided differently. In other words, he suggests locating the ratio by using a negative method as illustrated by the flow chart in Figure 4.3, below. Wambaugh emphasises the search for a rule.](https://images.tandf.co.uk/common/jackets/crclarge/978185941/9781859417836.jpg "4 THE THEORETICAL DIMENSIONS OF THE DOCTRINE OF PRECEDENT Many legal theorists and practitioners have attempted, over the years, to give precise definitions of the English doctrine of precedent. Unfortunately for law students, there are no simple shortcuts to understanding the practical everyday working of the doctrine of precedent. However, a few theoretical ground rules can be established, which at least place the operation of the doctrine of precedent within a context: (1) judges at all levels of the court hierarchy must follow decisions of the higher courts; (2) judges in the higher courts must follow previous decisions of their own courtor that of a higher court if the case was similar, and does not fall into any allowed exceptions. It is accepted, however, that in the Court of Appeal, a more relaxed attitude can be taken in relation to criminal appeals; (3) since a Practice Statement by the Lord Chancellor in 1966, judges in the House of Lords have the freedom to decline to follow their own previous decisions (Practice Direction (Judicial Precedent) [1966] 3 All ER 77). This freedom is exercised sparingly—but in a more relaxed way in its criminal jurisdiction than in its civil jurisdiction. Much depends on the definition of similar. How similar must a previous case be before it becomes a precedent to be followed in a current case? Notice, again, how everything turns on language and the meaning of words. The facts of cases usually vary in some way Law is about life and life rarely replicates itself exactly, but trends and degrees of similarity can be noted. The following issues need to be dealt with: (1) must the law be similar now as then? (2) what happens if there are small fact differences? (3) what if there are a range of small differences—is the case sufficiently similar? There are no definitions of similar for the purposes of the doctrine and this is where the judge can bring subjective influences into the decision making processes. He or she can determine what ‘similarity’ is. In addition, how can the reason for the case be extracted? Similar cases must be decided in accordance with the same reasoning process. The actual doctrine as it has developed refers to keeping to the reasons for deciding past cases. How does one find the reasoning? Wambaugh, a theorist working in America in the late 19th century, suggests that one way of ascertaining the reason for the decision (ratio decidendi) is to look for a general rule of law in the judgments and test whether it is foundational for deciding the case by translating it into the negative form and seeing if the case would then have been decided differently. In other words, he suggests locating the ratio by using a negative method as illustrated by the flow chart in Figure 4.3, below. Wambaugh emphasises the search for a rule.")
Chapter
4 THE THEORETICAL DIMENSIONS OF THE DOCTRINE OF PRECEDENT Many legal theorists and practitioners have attempted, over the years, to give precise definitions of the English doctrine of precedent. Unfortunately for law students, there are no simple shortcuts to understanding the practical everyday working of the doctrine of precedent. However, a few theoretical ground rules can be established, which at least place the operation of the doctrine of precedent within a context: (1) judges at all levels of the court hierarchy must follow decisions of the higher courts; (2) judges in the higher courts must follow previous decisions of their own courtor that of a higher court if the case was similar, and does not fall into any allowed exceptions. It is accepted, however, that in the Court of Appeal, a more relaxed attitude can be taken in relation to criminal appeals; (3) since a Practice Statement by the Lord Chancellor in 1966, judges in the House of Lords have the freedom to decline to follow their own previous decisions (Practice Direction (Judicial Precedent) [1966] 3 All ER 77). This freedom is exercised sparingly—but in a more relaxed way in its criminal jurisdiction than in its civil jurisdiction. Much depends on the definition of similar. How similar must a previous case be before it becomes a precedent to be followed in a current case? Notice, again, how everything turns on language and the meaning of words. The facts of cases usually vary in some way Law is about life and life rarely replicates itself exactly, but trends and degrees of similarity can be noted. The following issues need to be dealt with: (1) must the law be similar now as then? (2) what happens if there are small fact differences? (3) what if there are a range of small differences—is the case sufficiently similar? There are no definitions of similar for the purposes of the doctrine and this is where the judge can bring subjective influences into the decision making processes. He or she can determine what ‘similarity’ is. In addition, how can the reason for the case be extracted? Similar cases must be decided in accordance with the same reasoning process. The actual doctrine as it has developed refers to keeping to the reasons for deciding past cases. How does one find the reasoning? Wambaugh, a theorist working in America in the late 19th century, suggests that one way of ascertaining the reason for the decision (ratio decidendi) is to look for a general rule of law in the judgments and test whether it is foundational for deciding the case by translating it into the negative form and seeing if the case would then have been decided differently. In other words, he suggests locating the ratio by using a negative method as illustrated by the flow chart in Figure 4.3, below. Wambaugh emphasises the search for a rule.
DOI link for 4 THE THEORETICAL DIMENSIONS OF THE DOCTRINE OF PRECEDENT Many legal theorists and practitioners have attempted, over the years, to give precise definitions of the English doctrine of precedent. Unfortunately for law students, there are no simple shortcuts to understanding the practical everyday working of the doctrine of precedent. However, a few theoretical ground rules can be established, which at least place the operation of the doctrine of precedent within a context: (1) judges at all levels of the court hierarchy must follow decisions of the higher courts; (2) judges in the higher courts must follow previous decisions of their own courtor that of a higher court if the case was similar, and does not fall into any allowed exceptions. It is accepted, however, that in the Court of Appeal, a more relaxed attitude can be taken in relation to criminal appeals; (3) since a Practice Statement by the Lord Chancellor in 1966, judges in the House of Lords have the freedom to decline to follow their own previous decisions (Practice Direction (Judicial Precedent) [1966] 3 All ER 77). This freedom is exercised sparingly—but in a more relaxed way in its criminal jurisdiction than in its civil jurisdiction. Much depends on the definition of similar. How similar must a previous case be before it becomes a precedent to be followed in a current case? Notice, again, how everything turns on language and the meaning of words. The facts of cases usually vary in some way Law is about life and life rarely replicates itself exactly, but trends and degrees of similarity can be noted. The following issues need to be dealt with: (1) must the law be similar now as then? (2) what happens if there are small fact differences? (3) what if there are a range of small differences—is the case sufficiently similar? There are no definitions of similar for the purposes of the doctrine and this is where the judge can bring subjective influences into the decision making processes. He or she can determine what ‘similarity’ is. In addition, how can the reason for the case be extracted? Similar cases must be decided in accordance with the same reasoning process. The actual doctrine as it has developed refers to keeping to the reasons for deciding past cases. How does one find the reasoning? Wambaugh, a theorist working in America in the late 19th century, suggests that one way of ascertaining the reason for the decision (ratio decidendi) is to look for a general rule of law in the judgments and test whether it is foundational for deciding the case by translating it into the negative form and seeing if the case would then have been decided differently. In other words, he suggests locating the ratio by using a negative method as illustrated by the flow chart in Figure 4.3, below. Wambaugh emphasises the search for a rule.
4 THE THEORETICAL DIMENSIONS OF THE DOCTRINE OF PRECEDENT Many legal theorists and practitioners have attempted, over the years, to give precise definitions of the English doctrine of precedent. Unfortunately for law students, there are no simple shortcuts to understanding the practical everyday working of the doctrine of precedent. However, a few theoretical ground rules can be established, which at least place the operation of the doctrine of precedent within a context: (1) judges at all levels of the court hierarchy must follow decisions of the higher courts; (2) judges in the higher courts must follow previous decisions of their own courtor that of a higher court if the case was similar, and does not fall into any allowed exceptions. It is accepted, however, that in the Court of Appeal, a more relaxed attitude can be taken in relation to criminal appeals; (3) since a Practice Statement by the Lord Chancellor in 1966, judges in the House of Lords have the freedom to decline to follow their own previous decisions (Practice Direction (Judicial Precedent) [1966] 3 All ER 77). This freedom is exercised sparingly—but in a more relaxed way in its criminal jurisdiction than in its civil jurisdiction. Much depends on the definition of similar. How similar must a previous case be before it becomes a precedent to be followed in a current case? Notice, again, how everything turns on language and the meaning of words. The facts of cases usually vary in some way Law is about life and life rarely replicates itself exactly, but trends and degrees of similarity can be noted. The following issues need to be dealt with: (1) must the law be similar now as then? (2) what happens if there are small fact differences? (3) what if there are a range of small differences—is the case sufficiently similar? There are no definitions of similar for the purposes of the doctrine and this is where the judge can bring subjective influences into the decision making processes. He or she can determine what ‘similarity’ is. In addition, how can the reason for the case be extracted? Similar cases must be decided in accordance with the same reasoning process. The actual doctrine as it has developed refers to keeping to the reasons for deciding past cases. How does one find the reasoning? Wambaugh, a theorist working in America in the late 19th century, suggests that one way of ascertaining the reason for the decision (ratio decidendi) is to look for a general rule of law in the judgments and test whether it is foundational for deciding the case by translating it into the negative form and seeing if the case would then have been decided differently. In other words, he suggests locating the ratio by using a negative method as illustrated by the flow chart in Figure 4.3, below. Wambaugh emphasises the search for a rule.
ABSTRACT
However, a few theoretical ground rules can be established, which at least place the operation of the doctrine of precedent within a context: (1) judges at all levels of the court hierarchy must follow decisions of the higher
courts; (2) judges in the higher courts must follow previous decisions of their own courtor
that of a higher court if the case was similar, and does not fall into any allowed exceptions. It is accepted, however, that in the Court of Appeal, a more relaxed attitude can be taken in relation to criminal appeals;
(3) since a Practice Statement by the Lord Chancellor in 1966, judges in the House of Lords have the freedom to decline to follow their own previous decisions (Practice Direction (Judicial Precedent) [1966] 3 All ER 77). This freedom is exercised sparingly-but in a more relaxed way in its criminal jurisdiction than in its civil jurisdiction.
