The question on judicial precedent being the binding precedent has to be enormously differentiated. Binding precedent confirms to the hierarchy of courts whereas mere precedent may be persuasive. Today, this doctrine is within the hazard of fading off due to the departure mechanism being a tool for judges to move far from the precedent created with the aid of higher courts or the identical ability courts. Whilst such endeavor, the question arises does this leads to judges to be a “judicial legislator” i.E. To make regulation. This discretion seemingly is argued as too liberal due to the fact the orthodox notion that judge should simplest interpret statutes and better court’s decision by way of looking into the “ratio decidendi” and “obiter dicta” is being defeated. Obviously, that is their constitutional role Broward judge.
The doctrine of “stare decisis” could sufficiently mean all instances which have comparable facts that will be dealt with alike clearly for the reason for the degree of truth and in an effort to avoid injustice at the same time restricts unduly improvement of regulation to a degree. However, what typically binds is the ratio decidendi that is the cloth tremendous selection and no longer the obiter dicta which is simply the sizeable opinion or view supplied with the aid of both assenting or dissenting judges in the higher court docket. This argument these days is being whittle down for the cause of the mind-set of judges i.E. The faculty of notion of declaratory theory and judge made regulation principle.
Judges who adhere to the declaratory principle of law wherein the allegiance owed to the parliament that’s considered to be the most ideal law making body primarily based on doctrine of parliamentary supremacy and belief of separation of powers, judges consider themselves to be merely interpretative. Those who belonged to this faculty of idea undoubtedly Ld Simmonds, Ld Hodson and Ld Salmon who do no longer deliver room for judicial creativity and label themselves as passivists choose.
On the opposite, a few judges do create reasons and do now not need to routinely observe better courtroom’s selection by growing new regulation or expanding the old regulation. The query is who lingers on this arguments absolutely is Ld Denning or Ld Woolf who’ve this rivalry that they’re activist judge whom I would daringly say has created many rooms on judicial creativity. One of the case that have to be applauded with the aid of Ld Denning was Central London Property Trust v High Trees House where he championed the doctrine of Promissory Estoppel and additionally within the case of Brb v Harington that an occupier owes a duty of care to non-site visitors primarily based on grounds of not unusual humanity which later this principle turned into fashioned in the Occupier’s Liability Act 1984. This naturally indicates that activists judges have induced parliament to enact regulation even as the conservative beliefs would be enactment of Parliament brought on judges to make law.
To reconcile this two function might be an attempt which might be past imagination because this is two specific global of school of thoughts. It may be without difficulty concluded that it’s miles the mind-set of judges respectively that brings approximately the decide made regulation concept on their own whims and fancies probably out of necessity and for need of justice.
However, the departing equipment of the exception as laid out by Ld Gardiner in Practice Statement 1966 for the HoL and the Young v Bristol Aeroplane exception has seeped into the machine except the distinguishing factors as what Prof. M. Zander profoundly stated “distinguishing the indistinguishable” to a degree.
Hence, there appears to be too many evaluations on whether this doctrine of binding precedent is a fantasy or is it a rule of law that every one judges should adapt the “stare decisis” mind-set. Prof. Glanville Williams discovered it atypical that the authority that precedent is binding them is the everyday HoL rather than parliamentary authority. This virtually shows why have to a choose observe higher authority’s selection besides parliament. Sir Rubert Cross turned into on the contrary opinion in which he indicated that a decide is sure by using ratio decidendi. This jurisprudential debate has been going too lengthy. However, there has been no attempt with the aid of parliament to place a stop, preclude or prevent that decide made regulation idea. But every time decrease courts leave from their decision, [higher courts] they may be typically reprimanded and admonished upon an attraction either via overruling or reversing which is first-rate illustrated whilst Murphy v Brentwood District Council overruled Anns v Merton, Anderton v Ryan being overruled by way of R v Shivpuri, and DPP v Lynch being overruled by R v Harvey.
The query as to what volume the doctrine of binding precedent allows judges to make regulation could be to be correctly stated relies upon on different factors including a few judges would avoid the clutches of an unwelcome precedent. Some judges do no longer trust within the fairy memories of cases. Some judges consider that an adjudication should be settled consistent with the increase of time and the sophistication of modern international. A few judges also believes that “nakedly usurping the function of parliament” as Ld Simmonds indicated and as what Ld Denning recognized his function that at times judges should “top off the gaps” that was accidental through parliament.
Looking at the above argument, it might be incorrect to mention that the doctrine of binding precedent permits judges to make law; however alternatively it allows to develop regulation w/o limits. Another stand would be the various departure mechanisms to be had to the judge although every mechanism can simplest be exercised with their respective limitations which again was created by judges has brought on judges to make regulation as an alternative. As what prof. M. Zander’s that precedents have to be dealt with as the subsequent great proof rule” and judges will usually want to have the first-rate proof or precedents as the case may be. This view reflects the fluidity and flexibility of the common law system and the real practice of courts.