Monday, August 23, 2010

Fact or fiction

Here is an interesting topic for discussion: the doctrine of stare decisis is a myth. When judges want to get around a case they do not like, they will always find a way.

Can a judge avoid stare decisis? If so how do they do it? One of the most commmon ways is the concept of distingusing. In distingusing, a court may regard the facts of the case before it as significantly different from the facts of a cited precedent, so it will not find itself bound to follow that precedent. Judges use the device of distinguishing where, for some reason, they are unwilling to follow a particular precedent. Law reports provide many examples of strained distinctions where a court has quite evidently not wanted to follow an authority that it would otherwise have been bound by.

A less common method is overruling. Overruling is the procedure whereby a court higher up in the hierarchy (usually the House of Lords) sets aside a legal ruling established in a previous case. Overruling should not be confused with ‘reversing’, which is the procedure by which a superior court in the hierarchy reverses the decision of a lower court in the same case.

In overruling, courts overrule longstanding authorities because they no longer accurately reflect contemporary practices or morals. Courts overrule authorities where they see them as no longer representing an appropriate statement of law.

One other new method which allows a bit of flexibility to stare decisis is the Human Rights Act 1998 which requires that courts interpet law as far as possible to fit it within the context of the European Convention on Human Rights. Thus courts may interpet laws in new ways sidestepping stare decisis in order to achieve this goal.

However, it is important to note that higher courts in the judiciary may take a poor view of a judge who attemps to avoid stare decisis and may reverse their decisions as happened to Lord Denning upon occassion...


  1. Hello there,
    Fellow LLB student here, long time lurker of the VLE forums. In relation to the question posed - is DBP a myth ?

    Just a few thoughts
    - I think you're absolutely right, judges have plenty of room to make their mark whenever there is ambiguity, they can distinguish the case before them from a decided case.

    - but I think its a little extreme to say that DBP is a myth. There are entire branches of law dependent on and established because of DBP - Contract Law and Criminal Law in particular.

    - Unless all that case law is codified (Highly unlikely and a daunting task since DBP has been practiced for hundreds of years.

  2. First of all thanks for the post, it is always really nice to get feedback - especially from someone who has been "lurking" in the background :-)

    Secondly, I agree, it seems to me the more I study the more that judges rely upon whatever rationale suits them at the moment. To be sure, there is a foundation upon which they build but there is room for interpretation.

    Finally while I agree that codification is unlikely to come, it would be brilliant were it to happen.

    Best of luck in your studies.