4.2.2. Advantages and disadvantages of precedent

There are both advantages and disadvantages to the way in which judicial precedent operates in England and Wales. The main advantages are:

1. It serves the interests of justice and fairness as similar cases are seen to be treated in a similar way, just as in any sport it is seen as fair that the rules of the game apply equally to each side.

2. It creates certainty in the law and allows lawyers to advise clients on the probable outcome of a case. It also allows people to operate their businesses knowing that financial and other arrangements they make are recognised by law.

3. There is opportunity for the law to develop and change with society as the House of Lords can use the Practice Statement to overrule cases. The ability to distinguish cases also gives all courts some flexibility and freedom to avoid past decisions and develop the law.

4. As decisions are based on real cases there are practical illustrations of the law; the law becomes very precise.

5. It is a time-saving device. Where a principle has been established, cases with similar facts are unlikely to go through the lengthy process of litigation.

However, there are disadvantages as follows:

1. The doctrine as applied in the English Legal System is too rigid. The fact that lower courts have to follow decisions of higher courts, together with the fact that the Court of Appeal has to follow its own past decisions, can make the law too inflexible so that bad decisions made in the past may be perpetuated. There is the added problem that so few cases go to the House of Lords. Change in the law will only take place if parties have the courage, the persistence and the money to appeal their case.

2. This rigidity can create injustice in an individual case.

3. The law is slow to develop; it is recognised that areas of law are unclear and in need of reform, but changes cannot be made unless a case on the particular point of law comes before the court. There may be a long wait for a suitable case to be appealed as far as the House of Lords, as only about 50 cases go to the House of Lords each year.

4. The law is complex, with too many fine distinctions.

5. Since there are nearly half a million reported cases it is not easy to find all the relevant case law even with computerized databases.

Words and phrases you need to know

1. bind v (to impose one or more legal duties) bound (to have a duty)

binding adj (of something written, having the power to demand obedience <e.g. to a law> or fulfillment <e.g. of a promise>

binding precedent (a precedent that a court must follow)

2. persuade n (to induce another to do something)

persuasive adj ( having the power to convince others)

3, reverse v (to change a decision or judgement to the opposite)

reversal n (an appellate court’s overturning of lower court’s decision)

persuasive precedent (a precedent that a court may either follow or reject, but that is entitled to respect and careful consideration)

4. legal ruling n ( a court’s decision, judgment, opinion)

5. overrule v (<of a court> to overturn or set aside a precedent by expressly deciding that it should no longer be controlling law)

6. distinguish v (to note a significant factual, procedural, or legal difference in an earlier case, usu, to minimize the case’s precedential effect or to show that it is inapplicable)

7. certainty n (the state of being completely certain)

8. flexibility n (the ability to change or be changed easily to suit a different situation) flexible (inflexible)

9. precise adj (exact)

10. rigid adj (difficult to change)

rigidity n

Exercise 1. Read the following sentences, notice carefully the active words in bold, and translate the sentences into Russian.

Bind/bound

1. The contract binds the parties.

2. Courts are bound by precedent.

3. Binding precedent is a precedent from an earlier case which must be followed even if the judge in the later case does not agree with the legal principle.

Persuade/persuasive

1. These decisions may not be binding precedents, but they will have persuasive value.

2. The judge may consider it and decide that it is a correct principle so he is persuaded that he should follow it.

3. Persuasive precedents are recognized by people as the law, and acted upon accordingly.

Reverse

1. The appeal court reversed the original verdict and set the prisoner free.

2. The company’s profits have been steadily falling, and his job is to reverse this trend.

3. A decision can be reversed. This is where a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case.

Overrule

1. Where similar facts come before the courts in a later case, then a higher court can overrule the previous decision of a lower one. This is where a court in a later case states that the legal rule decided in an earlier case is wrong.

2.Overruling may occur when a higher court overrules a decision made in an earlier case by a lower court, for example, the House of Lords overruling a decision of the Court of Appeal.

3. It can also occur where the European Court of Justice overrules a past decision it has made; or when the House of Lords uses its power under the Practice Statement to overrule a past decision of its own.

Distinguish

1. The lawyer distinguished the cited case from the case at bar.

2. Finally, a previous decision can often be distinguished where the material facts of the earlier case differ from the present ones.

3.There will always be some difference between the facts of two separate cases and if the later judge feels that the difference is sufficient to justify a different decision, he will distinguish the earlier case. In this way even a lower court can avoid holding itself bound by a previous higher decision.

Certainty

1. She knew with absolute certainty that he’d say no.

2. The result is impossible to predict with any degree of certainty.

3. It creates certainty in the law and allows lawyers to advise clients on the probable outcome of a case.

Flexibility/ (in)flexible

1. Employees expect flexibility in the work-place.

2. The ability to distinguish cases also gives all courts some flexibility and freedom to avoid past decisions and develop the law.

3. The fact that lower courts have to follow decisions of higher courts, together with the fact that the Court of Appeal has to follow its own past decisions, can make the law too inflexible so that bad decisions made in the past may be perpetuated.

Precise

1. It was difficult to get precise information.

2. At that precise moment, her husband walked in.

3. As decisions are based on real cases there are practical illustrations of the law; the law becomes very precise.

Rigid/rigidity

1. He is very rigid in his ideas.

2. The doctrine as applied in the English Legal System is too rigid.

3. This rigidity can create injustice in an individual case.

Exercise 2. Fill the spaces in the following sentences with a suitable expression from Exercise 1.

1. We need … methods of education.

2. I can’t say with any … what my plans are.

3. The … cause of the disease is unknown.

4. His attorney argued that the Cope could not … between right and wrong.

5. One can … oneself as in a contract or one can be … by a judgement.

6. A government needs a more … approach to education.

7. The Court of Appeal is … by previous decisions of the Lords and, in most circumstances, by its own previous decisions. Its decisions are … on all lower courts but not upon the House of Lords.

8. The decision was … on appeal.

9. These will be obiter dicta (other comments) and while they may have … force in future cases, they are not binding.

10. The judge … all of the defendant’s objections.

11. He said the bombing was in complete … of the Geneva Conventions.

m. Statement to … a past decision of its own.

n. Despite all my efforts to … him, he wouldn’t agree.

Exercise 3. Find in the text English equivalents for the following Russian words and expressions.

судебный прецедент, прецедент, имеющий обязательную силу, истец (сторона, заявляющая требование; претендент), Верхо вный суд, Апелляционный суд, гибкость, убеждать (в чём-л.) , убедительный

Exercise 4. Translate the following sentences into English.

1. Судебный прецедент – это такое решение суда по конкретному делу, которое подсказывает другим судьям, какое решение следует принять при разрешении аналогичных дел в будущем. Те нормы права, которые своим происхождение обязаны судебным решениям, в английском праве относятся к прецедентному праву, аннулировать, отклонять,

b. Юридическая сила судебного прецедента зависит от того, каким судом было принято решение. Так, решения вышестоящих судов являются юридически обязательными по отношению ко всем нижестоящим судам и приравниваются к закону.

c. Ratio decidendi – это та часть решения суда, в которой излагаются нормы права, на основе которых было разрешено данное дело.

d. Obiter dictum – носит дополнительный и аргументирующий, но необязательный характер.

e. Прецеденты, которые не относятся к числу юридически обязательных, называются убедительными.

f. Прецедент может быть пересмотрен (вновь определен) прямым указанием статута или решением вышестоящего суда.

7. Вышестоящий суд может изменит решение, принятое нижестоящим судом.

8. Суд может отклонить предъявленный ему прецедент по мотивам того, что он не в полной мере отвечает фактическим обстоятельствам рассматриваемого дела.

9. Судебные прецеденты, содержащие нормы конституционного права, создавались в процессе обычной судебной практики при рассмотрении судом конкретных дел, В большинстве своем это решения Верховного суда, Апелляционного суда и Палаты лордов.