Outline and Critically Assess the Role Played by the System of Judicial Precedent in Modern English Law.

Judicial Precedent is the way that English Common Law has evolved since the time of Henry II when courts were unified into a national system, making it common throughout England. Integral to it is the Latin phrase ‘stare decisis’ which literally means ‘to stand by what has been decided’. Its meaning in the case of judicial precedent is very similar, that a Judge will go by the same ruling as a previous judge has in the same cases; providing that the precedent comes from a higher or equal court, if it is from a lower court then the precedent is only considered, but may be used. It should be noted that this was not categorically announced by judges until the 19th Century.

Prior to 1066 and the Norman Conquest, law had been enforced by county, with a bishop and a sheriff presiding over ecclesiastical and civil law respectively. The King had very little control over law in the country; however, it was William the Conqueror who established a strong central government and the beginnings of a national law. The Treaty of Winchester (1153) was an important point for the origins of common law. Although it was the treaty which ended Stephen and Matilda’s war with Henry I and basically secured the succession of Henry II to be, it also marked the first time that the monarch interfered with the tenure of land between Feudal Lords and tenants. In previous cases it would have been a matter for the Lord’s court but now cases could be appealed to the King, a significant part of early common law. However it was not until Henry II’s reign that there was a unified system which was common to the whole country; thus common law emerged. It was, however, not as common law is today by any means. A jury would come to a verdict, having been sworn in, but usually come to a decision on the basis of common local knowledge; no evidence was usually presented to the jury. This could well be seen as a major problem as rumor and assumption could well play a major part in the jury’s verdict. Judges who had been sent by Henry II would then oversee the cases and solve them on an ad hoc basis, reporting back to the central court for discussion over their decisions which were recorded. A judge would then follow a previous judge’s ruling in a dispute and so began judicial precedent. However there were many problems with this early form; not least of which was with the judges themselves. Many had gained their position through rank or society and were, in many cases either partial or inconsistent with their decisions, making it a considerable amount of time before there was a firm basis from which to work. Another problem with this early form of law was the lack of remedies for the crimes committed, the only compensation being in the form of money. This caused great problems in the early system as money was not usually a commodity that most people had a lot of. In cases where lands were involved, people would usually appeal up to the King in order to get his decision as he was the only person who could override the law has he was above it.

However due to the lack of law being made by parliament at the time, case law was the most important source of law in England at this time. In deciding the case, there are two basic tasks for the judge: the first is to establish what the facts are, and secondly to how the law applies to these facts; it is the second of these that can make the law. Judges were not able to say (as they are now) that they did not have an answer when a case was brought before them and so they would refer back to an earlier judge’s ruling on a similar matter which were often recorded in Year Books. These are essentially the medieval records of law that was practiced in England from around 1289 to 1535, at which time they became printed and formed the first legal precedent. These early law reports were mostly privately written and focus on the plead of the defendant and a summary of each counsels argument. They are now, however, much the backwater of modern law and only really serve a historical purpose. Thus it can be seen why Judicial Precedent was so important, as it was the only way that the law was able to evolve over the medieval period. From 1535 onwards people began to write their own law reports privately, although they were published for public reference. The quality of these reports varied widely, however the most well known ones were written by Plowden and Coke. However, Ellis writes in the History of Judicial Precedent (1932) that he believes many of these privately written reports were intended for personal use only and it was only after encouragement from the authorities that they were published. This lends emphasis to the view that much of the law was based on judicial judgment and that the profession was in need of law reports. It should also be noted that very often the degree to which the judicial decision was taken to be binding would depend on the reputation of the judge and also that of the writer of the law report. These two reporters were considerably influential in the continuation of law reports and their credibility: Plowden for his meticulous care and preparation of his commentaries and that fact that in the very early days of law reporting his work was credible and accurate. Coke for the fact that his work came into Year Books in the early seventeenth century when the study of the afore mentioned was becoming out of date. His commentaries were vital to its continuation and the development of common law. In all a substantial number of the reports were collated into the ‘English Reports’ totaling 178 volumes, now mainly studied by academics. In 1865 The Incorporated Council for Law Reporting for England and Wales was formed, registered and a corporate body in 1870 it served the purpose of providing more accurate, quicker and cheaper law reports than before. They are produced by the council, have a summary of each counsels argument and perhaps more importantly, are subject to revision by judges, thus unsurprisingly they are regarded as the most accurate. This method of recording case law continues up until this day.

Thus it can be seen that judicial precedent had a major influence on the way that the law evolved in England. The main benefit of this way that the law has evolved is through cases and the fact that each case was compared to cases like it and there began from an early stage the element of continuity. This is critical for any justice system, but would have been especially important in the Middle Ages as people felt that they were being treated fairly and, in most cases, the judge would hand out the deserved punishment rather than being open to bias. The issue of binding and persuasive precedent is also a very important one. It is based on the principle of ‘stare decisis’ discussed earlier that the decision of a higher court is binding and sets a precedent for any case after it in a lower court that must be followed. It meant that was there was a certainty of continuity in the law as it was able to evolve through a rigid system without the risk of judges being able to be a law unto themselves.

The main criticism of judicial precedent is that it is too rigid and does not allow judges to overrule incorrect decisions which may have been made in the past by a higher court. A remedy to this, however, was passed in by the Supreme Court (1966) allowing could indeed to overrule its previous decisions made in the same House. Linked to the previous criticism is also the one of illogicality of judicial precedent, a judge will not be able to change the ruling on a decision just because the previous ruling was incorrect or did not fit, their only power is to refer the decision to a higher judge. There are, however, many benefits of the way that law has evolved through judicial precedent; the most important of which is certainty. Binding precedent means that there can be no doubt that the justice has been done and makes it also possible to predict the outcome of cases. There are also many detailed cases which have gone before over the years, thus meaning that there is a firm basis to work from, again linking into the area of certainty over the law. There is also the opportunity for the law to grow and evolve as new cases come into play, it gives judges the power to look at a case and give a new precedent if they feel the law does not adequately cover this issue, in today’s age, however, this is quite unlikely.