The rule of stare decisis

Principles of Reversing Incorrect Decisions

If a decision is clearly incorrect (both from a mistaken conception of the law or through a misapplication of the law to the facts), and if a reversal of it doesn't provoke injurious results, it's the imperative duty of the court to reverse it. It could be that precedents must be disregarded because they can't be reconciled with others. It could also be that the old decisions' authority has become obsolete.

Regarding isolated cases, a single decision upon a point of law is not considered as conclusive as a precedent in the same degree that a series of decisions upon that point would be.

The maxim stare decisis contemplates only points that are involved and determined in a case; the expressions said by the court out of the record, or points not involved, (being obiter dicta) do not become precedents. On the other hand, an expression of opinion involved in a case (even not essential for the attitude of the latter), discussed by counsel, and intentionally passed upon by

The court, isn’t necessarily an obiterdictum. When the record fairly presents two points upon the merits in a certain case,upon any of them the appellate court might rest its decision, and the court (withoutindicating which one is the ground of the judgment) decides both, the decision uponneither can be regarded as obiter dictum.

When judicial decisions may fairly be presumed to have been acted upon as a rule ofproperty, should be supported by the points involved and decided, and also by theprinciples declared to have been established by them in subsequent cases.

The process of reasoning, the illustrations, analogies, arguments, that are in theopinion of the court, aren’t precedent, but often they are used to show the grounds onwhich a doctrine rests, or to differentiate the particular authority from another case.

The doctrine of binding precedent promotes values. “One of the most fundamentalsocial interests is that law shall be uniform and impartial. There must be

nothing in its action that savors of prejudice or favour or even arbitrary whim or fitfulness. Therefore, in the main there shall be adherence to precedent” . The doctrine isn’t rigid as appears, judges have a certain freedom in evading undesired authorities, and they must follow a precedent “except where they may reasonably distinguish it” . The doctrine also promotes convenience. Having once decided an issue of law on a certain way, it’s proper that the same result is reached when a similar issue arises. In terms of achievement of certainty, no other legal system can compare with English system: the public can plan their affairs in the knowledge that if they continue to respect the law at that time, they are unlikely to be drawn into litigation. The lawyers can give advice based upon reasonable deduction, consequently reducing the resort to courts. Costs

can be lowered and courts are less weighted with trivial cases, and judges can apply law with a high degree of certainty. The doctrine of binding precedent is also criticized, considered that this doctrine is the most difficult to understand for civil law's jurist. The most common complaint is that "the dead hand of the past lies heavily on English law". Another common complaint is that "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It's still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past". The doctrine fetters the acquisition of experience, that can't be acquired if one precedent can settle the law. Searching a relevant precedent from the case law's mass doesn't guarantee the simplicity or certainty in the law. The high amount of relevant English case law increases the

Possibilities to overlooking a relevant precedent. All those considerations lead to uncertainty and unpredictability in those systems based on the doctrine of binding precedent.

The ratio decidendi

The usefulness of binding precedents can be perceived only if the binding portion of the judgment can be isolated from the law report. The traditional theory of ratio decidendi considers the ratio as the legal principle formulated by the earlier court in relation to the matter decided. This theory was unworkable in those rare cases where reasons weren't expressly given and where the court didn't formulate legal principles, nor could any be implied.

One modern theory considers the ratio from the facts of the case, and in particular: the facts that earlier court had treated as immaterial must be considered immaterial; facts which have been treated as material, must be considered material; if the judge hadn't distinguished between material and immaterial facts, all the facts

mentioned which weren't prima facie immaterial must be treated as material. The ratio is identified "in the conclusion reached by the judges on the basis of the 11 material facts and on the exclusion of the immaterial ones". The ratio is the legal rule that can bind a subsequent judge. The reason for the complexities is that an English judge isn't required to produce reasons in his judgment, and in this case the decision isn't less binding. It hasn't been settled one approach to the doctrine of binding precedent and the concept of ratio decidendi, and the judges don't bind themselves rigidly to one specific method; they approach different cases in different ways. A judge, interpreting and examining the facts and language of a precedent, will be "Jurisprudence" 8 R. Diaz, (London 1976) "Precedent in English and Continental Law" 9 A. Goodhart, [1934] 50 Law Quarterly Review 40, 41 "Collected legal papers" 10 O. Holmes, (New

York 1920)“Determining the Ratio Decidendi of a Case”,11 A. Goodhart, (1930) 40 Yale LawJournal 161influenced by: the age of precedent, the composition of the court, his own sense ofjustice, the arguments that had been submitted to the court.

The authority of non-binding principles

Non-binding principles consists of: obiter dicta, overruled decisions, reverseddecisions, per incuriam, cessante ratione, distinguishing and minority opinions.

All statements of law enunciated by judges which aren’t rationes are obiter dicta. Dictahas a mere persuasive authority, and they have more weight if they are delivered byan appellate court. Lower courts regard the House of Lords’ dicta with particularreverence. Dicta include propositions stated by way of illustrations, and propositionsstated on hypothetical facts. The judge has to not disregard, ab initio, as irrelevantanything said in English law reports. The dicta’s weight depends on the hierarchicalposition of the

Earlier court in relation to the present court, the number of judges who had concurred in the dicta, the relevancy of those dicta to the earlier case. Some dicta become entrenched through the passage of time.

Generally, judges are reluctant to overrule old decisions, they don't want to disturb existing arrangements entered between individuals. Therefore, when a precedent is eventually overruled it means that is clearly wrong; only higher courts can overrule an erroneous decision.

About reversed decisions, when a case goes on appeal, the higher court may affirm or reverse lower courts' decision on new grounds which weren't discussed by the latter. Lower's courts decision's ratio may be left intact and not commented upon at all.

The question about the status of the lower courts' ratio has been answered in two different ways by the courts. The first is to treat lower court's ratio as effectively overruled if the decision was affirmed on different grounds. Conversely,

Perhaps the fact that appellate court left the lower's reasoning intact shows that there wasn't disagreement with those grounds. Before the topic is entirely resolved, it appears that a subsequent judge has great freedom to deal as he prefers. "Per incuriam". Regarding the Court of Appeal had affirmed (in Young v Bristol Aeroplane Co. Ltd.) that it wasn't bound by its own decision if the latter had (per incuriam) overlooked a relevant authority. This method isn't valid for otherwise per incuriam higher courts' binding decisions. The objective of application of is extremely limited. "A general rule the only cases in which decisions should be held to per incuriam have been given are those of decisions given in ignorance of forgetfulness of some inconsistent statutory provision or of some authority binding on per incuriam 12 the court concerned", as long as the decision being declared wasn't given by a court hierarchically higher than present.

court.“cessante ratione”,Concearning The House of Lords is reluctant to permit a widerapplication of cessante ratione, and this is due to “the perpetuation of the declaratorytheory of common law, that is that case law only reflects what has always been the13law” . To this day, cessante ratione applies only to precedents which aren’t otherwisebinding, for example the Court of Appeal isn’t permitted to declare a precedent of theHouse of Lords cessante ratione.

Morelle Ltd. v Wakeling12 [1955] 2 QB 379, 406 per Sir Raymond Evershed MR

Binding precedent and English judicial law-making13 David Vong

About distinguishing’s topic, the law’s development is due to two processes: followingcases and distinguishing cases. The flexibility of binding precedent’s doctrine isincreased by the common law technique. A judge distinguishes an otherwise bindingprecedent by re-stating the factual part of the precedent, lowering the level ofgenerality or

Treating additional facts as material in the precedent, or re-interpreting the precedent to say that what the earlier judge appeared to say was the ratio, was actually a dictum. The authority of a precedent that is distinguished more than once, can be compromised without being expressly overruled.

Distinguishing is appropriate when a House of Lords' precedent consists of five judgments which concur as to the result but differ as to reasons and as to materiality of facts. The refusal to follow a precedent should be justified by the use of a factual difference.

English judges have the right to deliver an assenting or dissenting judgment, and often dissenters give detailed judgments to explain their opinions. It is said that dissenting judgments should be delivered rarely to not reduce public confidence in the judiciary. On the other hand, it demonstrates a division in the court and it has to be freely expressed in common law's system.