Return to the Rule of Law – Part 3

This series is intended to explain the rule of law at a basic level to give a clearer view for easier understanding by the public.

It is by no means a complete view which would be academic in nature.

What are the formal and substantive elements of the rule of law?

If I were to go back to using my previous example: Parliament decides, and correctly passes a law to the effect that 95% of your earnings will be taxed – taken by the State – what would be your reaction? I am certain that not many people will agree to bringing home 5% of their earnings.

The scenario above demonstrates both elements of the rule of law; the formal element is the passing of the law, using the correct procedures established. The substantive element of course, is the content of the law, what it says.

I will use another real example. A law is passed:

 

A subject of the state is a person who enjoys the protection of the German Reich and who in consequence has specific obligations toward it.

Do you see any problem with this? This was an actual law passed in Germany prior to World War II. It was ‘legally’ passed by the Reichstag (German authority led by a legally elected Adolf Hitler) at the time.

The content, of course, is questionable, and certainly does not meet some of the requirements of the rule of law as laid out by Prof Raz. Specifically, can anyone say that this particular law is clear? Would a person be able to predict accurately how the State will confirm his citizenship? Can it be challenged in the courts, with a predictable outcome? What if the Reich ‘withdraws its protection’ of a person, is that person still a subject of the State?

The formal element of the rule of law

What I am calling elements were described by Prof Paul Craig as ‘conceptions’. So, you may see references to conceptions on various websites.

A formal element/conception of the rule of law addresses the manner in which the law was promulgated. The formal element looks at whether the law was created in a properly authorised manner, by a properly authorised person/body, whether it is sufficiently clear to guide an individual’s conduct et cetera. Thus, if we go back to Prof Raz’s work, we can see the formal concept on display. The drawback is that the substantive conception/element is missing – once a law is passed properly in the prescribed manner, it is still law, regardless of the content.

We see this in the examples of laws passed by Nazi Germany prior to World War II, South Africa under the apartheid system (it was all legal), modern China, and North Korea et cetera. These are all valid legal/political systems within formal sense of the rule of law, but lack respect for or even acknowledgement of most human rights.

We hope and expect that the content of laws should be morally sound and that rights are protected therein. There is an obvious problem in this formal view, which is: the rule of law is not about the rule of “good” law. Hence the importance of the judiciary being independent in order to bring checks and balances – restraint – to arbitrary exercises of State power. If the judiciary follows the State, anarchy is not far behind – again, look at Nazi Germany, apartheid South Africa, et cetera. In addition to the independence of the judiciary, there must also be integrity of the judicial system itself as well as government accountability to help protect the rights of ordinary people, help settle their disputes and protect them from abuses of power – both private and public.

The 8 principles in the formal view of the rule of law (generality; publicity; prospectivity; intelligibility; consistency; practicability; stability; and congruence) was shared by Dicey, Prof Fuller, and Roberto Unger, among other academics theorising on the rule of law. Their work has contributed immensely to our understanding of the rule of law, pointing out inherent weaknesses in the formal conception. What seems to overcome these weaknesses is the introduction of a substantive element into the rule of law.

The substantive conception of the rule of law

We can look at law as having 2 opposing faces: first, it imposes conditions on the people which they must comply with, and second, it instructs officials of the State in what to do when the law is not complied with.

When stated like this, it is easy to see that law that does not meet the 8 principles with respect to people, may still be lawful with regard to the State. A person not knowing what he is charged with or found guilty of because of a secret trial or suppressed evidence in which the State holds all the cards, gives rise to – well, Guantanamo Bay, for example.

Or as Arthur Chaskalson, former Chief Justice of South Africa, said with respect to law that fails to recognise fundamental human rights:

[T]he apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized, and stable, and were upheld by law enforcement officials and judges. What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair (only whites, a minority of the population, had the vote). And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. Without a substantive content there would be no answer to the criticism, sometimes voiced, that the rule of law is “an empty vessel into which any law could be poured”.

The emphasis is mine.

The late Lord Bingham (The Rule of Law, 2010) was acerbic in his observation that:

A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.

Lord Bingham, like Profs Raz and Fuller, also argued that there are eight conditions for the rule of law to work:

1.    the law should apply equally to all;

2.    it should not be accessible only to the rich, meaning that disputes should be solved relatively cheaply;

3.    it must be easy to understand;

4.    it must protect fundamental human rights;

5.    it must be speedily enforced;

6.    the right to a fair trial is a cardinal requirement;

7.    public officials should not abuse their powers; and, finally,

8.    States should respect international law.

The fourth condition requires due regard to human rights, especially fundamental rights, which must be observed by the State if it is to fall within the ambit of the rule of law. Of course, the argument against the recognition of rights within the rule of law is that perennial question – which rights ought to be given priority? This is not only a legal question, but also a political one. Political because it is politicians who decides our rights and the conditions which we may access or assert those rights.

There is no question that people feel very strongly about their human rights, the way the State exercises its power through its agents, and indirectly, the rule of law, even if they do not understand the concept completely.

Next: the rule of law in economics.

Return to the Rule of Law – Part 2

This series is intended to explain the rule of law at a basic level to give a clearer view for easier understanding by the public.

It is by no means a complete view which would be academic in nature.

In the first part, I looked at AV Dicey’s theory on the rule of law. Now I will look at some principles inherent to the rule of law.

 

Last night, my phone rings. Private number. When I answer, the caller is a friend who just asks, “What would you say are the foundations of democratic principles? There is no right and wrong answer in this.”

 

I didn’t respond immediately. Slow and measured thinking is required. This colleague is well-known for trick questions.

 

After a few moments, I answer, “The rule of law and protection of human rights.”

 

Am I right? Well, my colleague concurred. He explained that he was upset by recent goings on here in the UK where ‘freedom of speech’ is being locked down on very important issues. He went on in some distress about people being barred from entering the UK because they intended to deliver a speech at Speakers’ Corner in Hyde Park, in London. The authorities perceived the speech as likely to offend the ‘public good’. His perception is that now people are to be banned from speaking the truth, if it would upset the ‘public good’ [a concept in law]. I checked on these matters, which are real and in the public domain.

 

How those in power deal with restrictions on the freedom of speech, is important because it is both about the exercise of power and potentially impacts on a human right (namely freedom of expression). I thought more about the foundations of democracy and the related principles. My colleague went on to mention George Orwell’s book ‘1984’.

 

If searching online for an answer to my friend’s question, various websites give ideas such as free and fair elections, human rights and fundamental freedoms, open and accountable government, and a ‘civil’ society. These are all true, but any fair-minded analysis of what they are, how they are arrived at, shows that they are primarily derived from the rule of law and protection of human rights. These two pillars - the rule of law, and the protection of human rights, go back over 2000 years. They are twin pillars that are almost fused together.

 

If you would grant me that the rule of law is such a powerful ingredient of democracy, why is it so misunderstood? Dicey’s three principles on the rule of law broadly says: The State cannot exercise arbitrary power; there must be equality before the law; and human rights are recognised from restraints on arbitrary power. Obviously, they throw up more questions that need to be determined. What is arbitrary power? What does equality mean? For that matter, what is law? Or rights?

 

The rule of law is an abstract concept but that means it is difficult to understand. If we try to simplify: How would you like if the government passed a law to empower the police to come into your house and take all your money away and freeze all your bank accounts? A very similar scenario occurred in 1933 in America. President Franklin D Roosevelt used the ‘Trading with the Enemy Act of 1917’ to make gold ownership illegal! This was issued by executive order 6102. The effect of all this was that possession of any gold coin or gold item was punishable by 10 years imprisonment and a fine of double the value of the gold possessed. You should be thinking, ‘What protections would I have? What are my rights? Where are my rights? How can I enforce my rights against that sort of power?’

 

If that above didn’t wake you up, consider how you would feel if your Parliament passed a law that meant you would be taxed at 95% on any and all of your earnings. What would you do? How would you feel about something that was perfectly legal but which would be totally ‘unfair’?

 

It is necessary to dig a bit deeper into the foundations of democracy. There are several different theoretical variants of the rule of law, making it harder to understand what it is and how it works. Prof Joseph Raz pointed out that the rule of law required eight conditions/principles to guide people’s behaviour so that they may act lawfully. The rule of law is not simply ‘the rule of the law’.

 

First, “all laws should be prospective, open, and clear.” The idea of this is quite clear – one cannot obey a law that is not yet written, kept hidden, secret, or opaque. The law must also be accessible.

 

Second, “laws should be relatively stable.” Again, the idea behind this is simple. Stability in the law gives people opportunity to plan their lives, carry out business et cetera. At the same time, laws should not be fixed and unyielding.

 

Third, “the making of particular laws, (particularly legal orders), should be guided by open, stable, clear, and general rules.” The idea behind this is to control discretionary powers granted to State authorities. Citizens should be able to predict how discretionary powers will be applied to their situation. Therefore, the discretionary powers themselves ought to be guided by clear guidance.

 

Fourth, “the independence of the judiciary must be guaranteed.” This is an important point supporting stability of the law. If the judges could not decide cases according to law, but by pressure from some external source, there would be no predictability/certainty in the law and citizens would thus not be able to be guided by it. It is essential to insulate judges from such pressure.

 

Fifth, “the principles of natural justice must be observed.” Natural justice requires that hearings be free and fair from bias, that fair procedures be adopted, that equal opportunity to be heard be given to both parties. Again, this is important so that citizens may know what is required of them to live within the law, and for the law to be applied impartially.

 

Sixth, “the courts should have overview over implementation of these principles.” In other words, the courts should have the power to examine the legality of legislation, the actions, and decisions taken by government bodies.

 

Seventh, “the courts should be easily accessible.” Long delays or excessive costs deny citizens justice, prevent assertion of rights or defence of their actions, and prevent the law from being enforced.

 

Eight, “discretion of state agencies, such as crime prevention, should not be allowed to pervert the law.” The discretion to act or not act against the citizen is built-in into the criminal justice system. This discretion ought not to be systematically used/abused to exempt certain classes of people from obeying the law.

 

These seem to be quite clear at first glance. However, a closer examination of these principles will show that hardly any mention is made regarding the content of the law. These principles are mainly about procedure in making laws and applying them subsequently. This brings the rule of law to a different focus – the substantive element or content of the law, and the formal or procedural element which addresses the way the law was created. But most importantly the rule of law is about restraint in the use of power.

 

Next: looking at the substantive and formal elements of the rule of law.

A return to the Rule of Law – Part 1

The Rule of Law

What is it? A conflict of suppositions

Many politicians use this phrase, attempting to say, “No matter the judgment, we won.” Or as Professor Jeremy Waldron (commenting on Bush v Gore) said:

‘… the utterance of those magic words meant little more than “Hooray for our side”’. (Bingham, p5)

Judges use it to describe concepts of law, yet it is interpreted differently by everyone. No two persons have the same view of the Rule of Law and what it means, and neither will be wrong, nor necessarily right.

The Rule of Law is a paradox, a contradiction both in theory and practice. A close examination will reveal the truth of that statement.

• · It is not legally enforceable, but it is enforced in courts.
• · It suggests a limitation to State power from abuse yet has no force.
• · Everyone “understands” what it means, yet no one does.
• · Its power come from emotive appeal, but not law.
• · It suggests an absence of tyranny but offers no protection from tyranny.
• · It is a method of social control without legal rules.
• · It is ‘fixed’ yet constantly in flux.
• · It is political, yet apolitical.
• · It conflicts with the notion of Parliamentary Sovereignty (the idea that Parliament can make or unmake any law).
• · It appears in written instruments of law but always without a clear definition.

The above is a non-exhaustive list. I will attempt to give a short explanation of what it is, and at the same time attempt to show what it isn’t. In trying to explain misconceptions people have of the rule of law, and comparing of some of its strengths and weaknesses, hopefully, some of the paradoxes above will be explained also.

The idea of ‘rule of law’ is very old, and has been traced way back to the time of Aristotle (384 – 322 BC):

“It is better for the law to rule than one of the citizens … so that even the guardians of the law are obeying the law.”

Stripped bare: A first look

However, law students first encounter the phrase ‘rule of law’ in connection with Albert Venn (AV) Dicey (1835 – 1922), former professor of law at Oxford University who popularised the phrase in his book: “Introduction to the Study of the Law of the Constitution”. Dicey was, for many years, considered the foremost ‘authority’ (I use that word with due caution) on the rule of law. He suggested that there were three tenets, or principles, present in the rule of law:

1) The State cannot exercise arbitrary power.

This simple statement is more revealing than it appears. What Dicey envisioned was that the State’s power, and its use of that power, must be controlled by law and the State cannot be allowed random powers or arbitrary use of those powers. Dicey also thought that rulers of State do not have any wide discretionary powers to create law but must do so within an established framework for creating laws, or by prior established law. In other words, the State cannot arrogate onto itself powers that it does not have, or think it has.

There is another principle associated with the use of law to control the State’s power. This asserts that a person cannot be punished by the State for something which is not against the law, or which was not against the law at the time he did it. In plain words, if an act is not explicitly forbidden, it is permitted and cannot be made a crime retroactively. Also, a person may only be punished for a breach of law proved before an ordinary court.

2) There must be equality before the law.

This may perhaps be a self-evident principle but one which is clear: Everyone, including the State and its agents, are bound by the same laws.

“Be ye ever so high, still the Law is above Thee.” (Thomas Fuller)

3) Origin of rights

In Dicey’s view, rights of the Englishman were derived from judgments coming from the courts, whereas under ‘Continental’ constitutions, he saw rights as being derived from the principles laid out in those constitutions.

Under the British Constitution therefore, rights were gradually obtained through judgments in which distinct principles were identified as abuse of power against the common man. Limitation of those excessive powers resulted in identifiable rights.

Case example

Entick v Carrington [1765] EWHC J98 (KB) beautifully illustrates several of the principles explained in the preceding paragraphs.

On 11 November 1762, Lord Halifax, a newly appointed Secretary of State, sent his Chief Messenger with a warrant, one Nathan Carrington (the defendant), to the home of John Entick (back then called the plaintiff). There:

“with force and arms broke and entered the dwelling-house… and continued there four hours without his consent and against his will, and all that time disturbed him in the peaceable possession thereof, and broke open the doors to the rooms, the locks, iron bars, etc. thereto affixed, and broke open the boxes, chests, drawers, etc. of the plaintiff in his house, and broke the locks thereto affixed, and searched and examined all the rooms, etc., in his dwelling-house, and all the boxes, etc., so broke open, and read over, pried into and examined all the private papers, books, etc. of the plaintiff there found, whereby the secret affairs, etc., of the plaintiff became wrongfully discovered and made public and took and carried away 100 printed charts, 100 printed pamphlets, etc. etc. of the plaintiff there found, and other 100 charts etc etc took and carried away, to the damage of the plaintiff 2000l (£2000)”

Arising out of the judgment were the following principles:

• · A State official cannot appropriate for himself power he does not have.
• · A State official’s authority must be clearly established in law.
• · The State is permitted to do only what is expressly (explicitly stated) permitted in law, but the individual may do anything except that which is expressly forbidden in law.
• · “Every invasion of private property, be it ever so minute, is a trespass”. This is also reiteration of the concept, “A man’s home is his castle…”. No one can interfere unlawfully with a person or his property.
• · The burden is on the trespasser to show cause.

Perhaps the best overall interpretation would be saying that a person has the right to respect for his private life, home etc.

Dicey’s view of the rule of law was understandably narrower than today’s perception, which, thanks to several academics such as Raz, Unger, Dworkin, Fuller and Bingham is more comprehensive than Dicey’s.

Next, a look at alternative views on the rule of law, and how Dicey’s observations were expanded upon.

Equity – What is it?

Given what we know about equity so far, how difficult would it be to get a definition? The answer may be surprising, especially if you were to consider the dictionary meaning: "the quality of being fair and impartial". It may surprise you to know that equity does not mean equality (as I had previously mentioned). In law, the real meaning of equity would be something like: "providing for individual needs in such a manner that the individual can live on equal terms with everyone else" (my words). To give you an idea of what I mean take a look at the following picture:

In the above picture, on the left, we can see that even though each person was treated equally, there is still an imbalance. On the right, each person as been treated according to his individual needs, but the result is that each person has equal opportunity (to view the game). To put it another way, equality is giving each person the same resources; equity is giving each person the resources that he or she needs to achieve equality – equity is the road and equality is the destination.

This is how the legal academic Gary Watt introduces ‘equity’:

The word ‘equity’ is used by the ‘haves’ and the ‘have nots’ in quite different ways, but always to denote something they hope to attain or retain. Whether approached from a religious or secular perspective, whether approached from a starting point of poverty or privilege, equity is universally considered to be something desirable, something to aspire to … Equity therefore has the potential to provide a language capable of traversing or filling some fundamental fissures in modern society.

(Watt, 2012, pp. 37–8)

Equality is a very important idea, and one that should be taken seriously. Since the late 1990s the importance of equality has been cemented in law by a number of high-profile pieces of UK government legislation, including the Human Rights Act 1998 and the Equality Act 2010. Yet equality alone cannot provide all the answers. Perhaps, as the image above suggests, when confronted with the novelty of individual needs an alternative method – one that does not rely upon treating everyone as identical – is required to ensure a reasonable chance of justice or fairness being achieved.

Thus, as this brief section has aimed to demonstrate, it is important to be aware of the problems that can and will arise if close attention is not paid to language and the context in which it is used. Where talking about justice, for example, it is not automatically about equality and vice versa. Likewise, equality cannot be automatically exchanged for equity.

© The Open University

In trying to understand equity, we must understand that there are advantages or privileges that exist alongside disadvantages. To achieve equality we must address the imbalances. Consider this: would affirmative action fall under equity, or would it, in its own right, be considered discrimination?

It is worth paying attention to the subjective nature of emotions/feelings, as these play a very important role in whether a person feels he is treated fairly or not. While law has certain objective mechanisms within its structure to help achieve fairness, equity plays a key part in "ensuring a degree of humanity remains within the law". It helps to maintain a degree of balance within the legal system, but there is always that subjective aspect of emotions.

To be continued…

W101 – Equity: introduction

Unit 7 of W101 introduces equity. Equity is a part of the common law and is another source of law as mentioned before. Equity is a queer creature; described as a combination of “philosophy, social justice and legal doctrine and procedure”, equity has a long and rich history. The learning outcomes for this unit are:

Learning outcomes

After studying this unit you should be able to:

• describe equity’s philosophical foundations
• consider equity’s present place and role in the common law jurisdiction of England and Wales
• discuss some of equity’s key areas of intervention within the common law system, e.g. remedies
• describe key historical points in the development of equity
• discuss extra-legal concepts and their relationship to equity, e.g. justice, fairness and conscience.

© The Open University

Equity was described by Aristotle as:

"When the thing is indefinite the rule is also indefinite, like the leaden rule used in making the Lesbian* moulding; the rule adapts itself to the shape of the stone and is not rigid, and so too the decree is adapted to the facts."

*A lesbian rule is a flexible rule used to draw smooth curves.

Photo of a Lesbian rule courtesy http://douglasbgibson.tumblr.com.

In other words, equity is flexible enough to find a solution that fits the problem. We will see how this works during this unit. Keep in mind that equity is both a foundational principle in legal philosophy as well as an ideal of social justice. Given that equity was recognised by Aristotle (384 – 322 BC), we can see that equity goes back more than 20 centuries! Of equity, Aristotle also said:

"Equity bids us be merciful to the weakness of human nature; to think less about the laws than about the man who framed them, and less about what he said than about what he meant; not to consider the actions of the accused so much as his intentions; nor this or that detail so much as the whole story; to ask not what a man is now but what he has always or usually been."

This excerpt demonstrates that equity can be divided into three broad but related categories which together form a starting point for thinking about equity. Equity is:

• a set of philosophical principles
• an ideal form of social justice
• a branch of legal doctrine and procedure.

© The Open University

The most accurate representation of equity in the 21st century is the last of the above – as a form of legal doctrine and procedure – as it follows rules and precedent much as the common law.

Next: what is equity?

W101 Skills 1 – Reading and Understanding Case Law

© The Open University

Note that the person bringing a claim in civil court is now called the “claimant”; before 1999 the person was called the “plaintiff”. The person defending the claim is now called the “respondent”. A person appealing a decision of a lower court is called the “appellant”. See the Supreme Court’s decisions webpage for examples.

Remember too, the case is known by the names of the parties e.g. Smith v Jones which is read as Smith and Jones. NOT Smith versus Jones. In a criminal case, the case R v Jones is read as R against Jones (where R signifies the Crown – Rex if the Monarch is male and Regina if the Monarch is female).

Doctrine of Precedent–cont’d

There are several more things that we need to know about the Doctrine of Precedent. We have already learnt that higher courts bind lower courts with their judgments. The reasoning behind these judgements are important since they formulate the principles upon which the precedent lies. The reason is known as ratio decidendi (the reason for the decision) although you may see it referred to as simply "ratio".

It must be pointed out that in any decision (as you can see in the previous post where I had posted a decision from the Supreme Court), the ratio is not clearly identified – there is no fixed section marked as ratio or ratio decidendi. It is upon reading the entire judgment that other judges can identify the ratio and the principles contained therein.

The judgment may also say other things "in passing" and this is known as orbiter dictum. While the ratio is binding, the orbiter is not. But it is considered persuasive. "In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument"".

* Typically, you will see the spelling of judgment without the "E" before the "M". While judgment (without the "E") and judgement (with the "E") are both correct spellings, in law it is usual and more common to use the former spelling. Therefore if you constantly use the spelling as you see it here – judgment – you will never be wrong.

Reading case law and terminology:

"The final part of this unit will use some terminology specific to reading case law. You will become familiar with these terms and their meanings while dealing with your skills materials. However, it is important to understand the terminology when you are dealing with the subject matter too. Here is a brief explanation of some of the terms used.

Affirmed – this term is used when an appeal court agrees with the earlier decision made by the lower court.

Applied – this term is used when a court finds itself bound by an earlier precedent and has applied the earlier case and reasoning to a subsequent case.

Approved – this is used when a superior court agrees with a lower court’s decision.

Considered – when a court has considered a case but not applied it to the case in question, the court uses this phrase to demonstrate that they have considered it but it has not been applied.

Distinguished – this phrase is used when a court is bound by a previous decision but does not wish to apply it in this instance. The court will find some differences which will allow them not to follow a particular case.

Overruled – this phrase is used when a court of equal or superior status rejects a decision of a court and applies a new decision.

Reversed – this is the opposite of affirmed. This phrase is used when a higher court has decided that a lower court came to the wrong decision."

© The Open University, 2014

Keep in mind that in 1966 (as we saw in the last post, paragraph 7 of the judgment) the House of Lords issued Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 in which the House of Lords departed from the former convention of binding itself. This is the text:

Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore, to modify their present practice and, while treating former decisions of this house as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement of property, and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House.

Next, I will write on the skills units 1 and 2.

Doctrine of Precedence

Stare Decisis (Latin for: "stand by that decided", or to give it the full name: Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed."), doctrine of precedence and judicial precedent; all are different terms meaning the same thing… That judges and magistrates are required to follow the rulings and determinations set by higher courts when a case involves similar sets of facts and issues. This gives a measure of consistency and standardisation and predictability.

When a case comes before the court, there are several steps which a judge takes into his consideration. These are:

• Ascertain the facts by hearing from all parties, witnesses and reviewing evidence.
• Locate and review legislation that may be relevant and interpret the legislation, if necessary.
• Locate and review previous rulings, similar cases and precedents that may be relevant.
• Ascertain whether these precedents may apply to the case and its facts. If so, apply the precedent as previously defined.
• If no precedent applies to the case and its specifics – make a ruling that establishes a new precedent.
• Include in the judgement a ratio decendi, providing legal reasons for the judgement.
[http://lawgovpol.com/doctrine-of-precedent/]

It is important to note that in order for this doctrine to work effectively, the hierarchy of the courts is critical. Here is a simple printout of the hierarchy in England and Wales. Remember that Scotland has a slightly different legal system. Additionally, remember that in England and Wales when we speak of courts, we also have to include tribunals. They have a separate hierarchy. For a more complete picture of the hierarchy of courts, see this link.

On 26 July 2016, the Supreme Court of the United Kingdom ("SC") gave a decision in the case of Willers (Appellant) v Joyce and another [2016] 3 WLR 534, in which the issue of precedence was discussed at length. This issue was of such importance that all nine judges heard this case. Typically, a case at the Supreme Court is heard by five judges, or if important, seven. For all nine judges to sit the case is of extreme importance in deciding some area of law.

The issue in this case was to decide when precedent applies from the Judicial Committee of the Privy Council (which is also a superior court, but for British territories) to courts of the United Kingdom. I will let the words of this decision speak for themselves.

4.                   In a common law system, where the law is in some areas made, and the law is in virtually all areas developed, by judges, the doctrine of precedent, or as it is sometimes known stare decisis, is fundamental. Decisions on points of law by more senior courts have to be accepted by more junior courts. Otherwise, the law becomes anarchic, and it loses coherence clarity and predictability. Cross and Harris in in their instructive Precedent in English Law 4th ed (1991), p 11, rightly refer to the “highly centralised nature of the hierarchy” of the courts of England and Wales, and the doctrine of precedent is a natural and necessary ingredient, or consequence, of that hierarchy.

5.                   The doctrine is, of course, seen in its simplest and most familiar form when applied to the hierarchy of courts. On issues of law, (i) Circuit Judges are bound by decisions of High Court Judges, the Court of Appeal and the Supreme Court, (ii) High Court Judges are bound by decisions of the Court of Appeal and the Supreme Court, and (iii) the Court of Appeal is bound by decisions of the Supreme Court. (The rule that a Circuit Judge is bound by a decision of a High Court Judge is most clear from a “Note” included at the end of the judgment in Howard De Walden Estates Ltd v Aggio [2008] Ch 26).

6.                   The position is rather more nuanced when it comes to courts of co-ordinate jurisdiction.

7.                   Until 50 years ago, the House of Lords used to be bound by its previous decisions - see eg London Tramways Co Ltd v London County Council [1898] AC 375. However, that changed in 1966 following the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, which emphasised that, while the Law Lords would regard their earlier decisions as “normally binding”, they would depart from them “when it appears right to do so”. The importance of consistency in the law was emphasised by Lord Wilberforce in Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345, 1349, when he explained that the Practice Statement should not be invoked to depart from an earlier decision, merely because a subsequent committee of Law Lords take a different view of the law: there has to be something more. Having said that, the Practice Statement has been invoked on a number of occasions in the past half-century, most recently in Knauer v Ministry of Justice [2016] 2 WLR 672, where, at paras 21-23 it was emphasised that, because of the importance of the role of precedent and the need for certainty and consistency in the law, the Supreme Court “should be very circumspect before accepting an invitation to invoke the 1966 Practice Statement”.

8.                   The Court of Appeal is bound by its own previous decisions, subject to limited exceptions. The principles were set out by the Court of Appeal in a well-known passage (which was approved by the House of Lords in Davis v Johnson [1979] AC 264) in Young v Bristol Aeroplane Co Ltd [1944] KB 718, 729-730:

“[The Court of Appeal] is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule … are … (1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.”

9.                   So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary: see Patel v Secretary of State for the Home Department [2013] 1 WLR 63, para 59. I would have thought that Circuit Judges should adopt much the same approach to decisions of other Circuit Judges.

10.              The question to be addressed in this appeal is the effect of decisions of the JCPC. Although the function of the JCPC has varied somewhat since its creation by the Judicial Committee Act 1833, this case is concerned with its function as the final appellate court for a number of Commonwealth countries, the 14 British Overseas Territories, the Channel Islands and the Isle of Man. In that capacity, the JCPC advises the monarch on the disposal of appeals or (in the case of republics) determines the disposal of appeals. Accordingly, the JCPC is not a court of any part of the United Kingdom.

11.              Having said that, the JCPC almost always applies the common law, and either all or four of the five Privy Counsellors who normally sit on any appeal will almost always be Justices of the Supreme Court. This reflects the position as it has been for more than 100 years, following the Appellate Jurisdiction Act 1876, which created the Lords of Appeal in Ordinary (ie the Law Lords), who thereafter constituted the majority of the Privy Counsellors who sat in the JCPC, until the creation of the Supreme Court in October 2009.

12.              Three consequences have been held to follow from this analysis, at least as a matter of logic. First, given that the JCPC is not a UK court at all, decisions of the JCPC cannot be binding on any judge of England and Wales, and, in particular, cannot override any decision of a court of England and Wales (let alone a decision of the Supreme Court or the Law Lords) which would otherwise represent a precedent which was binding on that judge. Secondly, given the identity of the Privy Counsellors who sit on the JCPC and the fact that they apply the common law, any decision of the JCPC, at least on a common law issue, should, subject always to the first point, normally be regarded by any Judge of England and Wales, and indeed any Justice of the Supreme Court, as being of great weight and persuasive value. Thirdly, the JCPC should regard itself as bound by any decision of the House of Lords or the Supreme Court - at least when applying the law of England and Wales. That last qualification is important: in some JCPC jurisdictions, the applicable common law is that of England and Wales, whereas in other JCPC jurisdictions, the common law is local common law, which will often be, but is by no means always necessarily, identical to that of England and Wales.

13.              In Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80, 108, Lord Scarman, giving the advice of the JCPC said “[o]nce it is accepted … that the applicable law is English”, the JCPC “will follow a House of Lords decision which covers the point in issue”. As he explained, the JCPC “is not the final judicial authority for the determination of English law. That is the responsibility of the House of Lords in its judicial capacity”. On the other hand, when the issue to be determined by the JCPC is not a point of English law, the JCPC is not automatically bound by a decision of the Law Lords (or the Supreme Court) even if the point at issue is one of common law, not least because the common law can develop in different ways in different jurisdictions (although it is highly desirable that all common law judges generally try and march together). This is well illustrated by the decision of the JCPC in the Hong Kong case of Mercedes-Benz AG v Leiduck [1996] AC 284, where the majority refused to follow the House of Lords decision in The Siskina [1979] AC 210.

14.              In In re Spectrum Plus Ltd (In liquidation) [2005] 2 AC 680, the House of Lords had to consider a point on which the Court of Appeal had expressed one view in two cases (Siebe Gorman & Co Ltd v Barclays Bank Ltd [1979] 2 Lloyds Rep 142 and In re New Bullas Trading Ltd [1994] 1 BCLC 485), and the JCPC had expressed the opposite view in a subsequent New Zealand appeal (Agnew v Comr of Inland Revenue [2001] 2 AC 710). In Spectrum Plus at first instance, the trial judge followed the JCPC decision, but the Court of Appeal held that he has been wrong to do so, as he was bound by the earlier Court of Appeal decisions, and they reversed him on the ground that they were equally bound.

15.              Although the House of Lords reinstated the trial judge’s decision, in Spectrum Plus and overruled the Court of Appeal decisions in Siebe Gorman v Barclays and in New Bullas, the majority of the Law Lords made it clear that the trial judge was wrong in not regarding himself as bound by those decisions and in treating himself as entitled to follow the more recent decision of the JCPC. Thus, at para 93, Lord Scott said that the Court of Appeal had “correctly” said that the trial judge’s “test was in conflict with the Court of Appeal’s decision in In re New Bullas … and concluded that the rules of binding precedent enabled neither [the judge] nor a subsequent Court of Appeal to rule that that case had been wrongly decided”. Lord Walker expressed himself more elliptically at para 153, where he said that the trial judge “was correct on every point in his judgment except one, which does not present any obstacle to your Lordships (that is as to the relative authority as precedents of the New Bullas and Agnew cases)”. Lord Nicholls, Lord Steyn and Lord Brown agreed with the opinions of both Lord Scott and Lord Walker.

16.              There is no doubt that, unless there is a decision of a superior court to the contrary effect, a court in England and Wales can normally be expected to follow a decision of the JCPC, but there is no question of it being bound to do so as a matter of precedent. There is also no doubt that a court should not, at least normally, follow a decision of the JCPC, if it is inconsistent with the decision of a court which is binding in accordance with the principles set out in paras 5, 8 and 9 above.

17.              The difficult question is whether this latter rule is absolute, or whether it is subject to the qualification that it can be disapplied where a first instance judge or the Court of Appeal considers that it is a foregone conclusion that the view taken by the JCPC will be accepted by the Court of Appeal or Supreme Court (as the case may be). There are decisions of the Court of Appeal which support such an approach - see eg Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518 in the civil field and R v James and Karimi [2006] QB 588 in the criminal field (both of which are well-established authorities which I am not calling into question). Nonetheless, I have concluded that it is more satisfactory if, subject to one important qualification which I deal with in paras 19 and 20 below, the rule is absolute - ie that a judge should never follow a decision of the JCPC, if it is inconsistent with the decision of a court which is otherwise binding on him or her in accordance with the principles set out in paras 5, 8 and 9 above.

18.              First, particularly given the importance of the doctrine of precedence and “highly centralised nature of the hierarchy” of the courts of England and Wales, the doctrine should be clear in its terms and simple in its application. Secondly, as the very careful judgment of Ms Tipples QC in the present case shows, there can be much argument and difference of opinion as to whether it is “a foregone conclusion” that the Court of Appeal or Supreme Court will follow a particular JCPC decision which is inconsistent with an earlier decision of the domestic court. If there is a strict rule, there need be no such argument. Thirdly, even apart from this second point, there should be no more delay or cost in having a strict and clear rule rather than a more flexible rule. Thus, if the first instance judge follows the decision of a superior court in this jurisdiction, she can grant a “leapfrog certificate”, and, if it is appropriate, the Supreme Court can then decide to consider the issue directly. It is hard to see why, if such a course is appropriate, it would be beneficial in terms of time or costs for the issue to be considered by the Court of Appeal. Having said that, there may well be case where the Supreme Court will consider that it would benefit from the views of the Court of Appeal, and in such a case it can refuse to entertain the appeal pursuant to the certificate.

19.              Having said that, I would adopt a suggestion made by Lord Toulson which may, in terms of strict logic, be inconsistent with the above analysis, but which is plainly sensible in practice and justified by experience (and is therefore consistent with Oliver Wendell Holmes’s view of the common law). There will be appeals to the JCPC where a party wishes to challenge the correctness of an earlier decision of the House of Lords or the Supreme Court, or of the Court of Appeal on a point of English law, and where the JCPC decides that the House of Lords or Supreme Court, or, as the case may be, the Court of Appeal, was wrong. It would plainly be unfortunate in practical terms if, in such circumstances, the JCPC could never effectively decide that courts of England and Wales should follow the JCPC decision rather than the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal. In my view, the way to reconcile this practical concern with the principled approach identified in paras 17 and 18 above is to take advantage of the fact that the President of the JCPC is the same person as the President of the Supreme Court, and the fact that panels of the JCPC normally consist of Justices of the Supreme Court.

20.              The JCPC’s current Practice Direction, in JCPC PD 3.1.3 and 4.2.2, already requires an applicant, or an appellant, to say whether an application for permission to appeal, or an appeal, will involve inviting the JCPC to depart from a decision of the House of Lords or the Supreme Court (and to give particulars). This should be expanded to apply to decisions of the Court of Appeal of England and Wales.

21.              In any case where the Practice Direction applies, I would hold that the following procedure should apply from now on. The registrar of the JCPC will draw the attention of the President of the JCPC to the fact there may be such an invitation. The President can then take that fact into account when deciding on the constitution and size of the panel which is to hear the appeal, and, provided that the point at issue is one of English law, the members of that panel can, if they think it appropriate, not only decide that the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal, was wrong, but also can expressly direct that domestic courts should treat the decision of the JCPC as representing the law of England and Wales. This is, I accept a modification of the observations of Lord Scarman giving the judgment of the Board in Tai Hing. However, it seems to me to be not only convenient but also sensible that the JCPC, which normally consists of the same judges as the Supreme Court, should, when applying English law, be capable of departing from an earlier decision of the Supreme Court or House of Lords to the same extent and with the same effect as the Supreme Court.

22.              I have not referred to the position in the courts of Scotland or of Northern Ireland, which were (understandably) not discussed in argument, but, at least as at present advised, the position would seem to me to be as follows. The traditional view in Scotland has been that, subject to some possible exceptions, judgments of the House of Lords in English appeals are at most highly persuasive rather than strictly binding, and I find it impossible to see how decisions of the JCPC on English law can have greater authority than that. As for Northern Ireland, given that the common law applies in the same way as it does in England and Wales, I would have thought that precisely the same principles should apply as they do in England and Wales.

Of course, this judgement has gone further into depth than is required at this level, but I wanted to indicate this most recent judgement and how important it is.

Differences between common law and civil law

There are several differences between common law and civil law. The main difference however, lies in the sources of the law. Judicial cases (the interpretation and analysis of statutes including) are regarded as the main source of law in a common law system. This gives the judges an active role in developing the law. Additionally, in order to maintain consistency, a system of precedent is used whereby issues decided by higher courts would bind lower courts on those same issues. This will be explained in more detail later on.

In contrast, in a civil law system past cases are considered as loose guides and judges have a more limited role. Codes and statutes are designed to cover all situations and judges in civil law systems are seen more as investigators rather than the arbitrators of the common law system.

Features which distinguish the two systems

Main feature of the legal system	Common law system	Civil law system
Development and continuity of legal system	Evolutionary – this allows judges to make changes on an incremental basis. This allows for a gradual development of the law.	Revolutionary – sudden changes which transform the state of the legal rule. This will occur through new codes/legislation.
Major source of law	Custom and practice	Codes (codification) and statutes
Reliance on precedent	Yes	No
Judicial role in law making	Active and creative	Passive and focus on the letter of the law (code)
A judge may review inferior decisions or question the way legislation has been used	Yes (judges can hear cases to see if the law has been properly applied)	No
Where decisions are made	During the hearing of the trial	Investigation and examination by judge or examining magistrate
Format of the trial	Adversarial	Inquisitorial
Function of lawyers	Debate and oppose	Advise and inform
Judge’s role during trial	Referee or umpire	Direct/examiner

 

© The Open University

 

You can read more about the differences here from the Open University, as well as listen to a podcast from the BBC's "Unreliable Evidence" program, in which Clive Anderson (a lawyer) interviews several legal experts.

 

I strongly suggest that you spend the time to read the links as sometimes a TMA (Tutor Marked Assignment) may come on differences between the two legal systems. And always keep in mind that all of Europe uses a civil law system.