English Legal System: Doctrine of Stare Decisis

This report provides an overview of the English legal system and focuses on the doctrine of stare decisis. It discusses the principles of the doctrine, its application in the English legal system, and the impact of case law on it. It also explores the contradictions within the doctrine and their implications.

English legal system

Table of Contents
INTRODUCTION ..........................................................................................................................3
MAIN BODY...................................................................................................................................3
English legal system....................................................................................................................3
Doctrine of Stare Decisis............................................................................................................4
Impact of the case on the doctrine of stare decisis......................................................................8
Contradiction of Doctrine of Stare Decisis.................................................................................8
CONCLUSION .............................................................................................................................10
REFERENCES..............................................................................................................................11

INTRODUCTION
English law is a common legal system which consists of the civil and the criminal law
and each legislation has its own branch of courts and the procedures. The English legal system
have the parliamentary system of the governance where the Parliament is the supreme law
making body. It comprises of common and statutory law where the former consists of the law
which is made by the judiciary and the later laws are framed by the Parliament. The common law
has the same relevancy and validity which the statutory law has and the judiciary is entrusted
with the most essential role of interpreting the statutory laws and making new laws which are
called the common law1. This report shall cover the doctrine of stare decisis and the impact of
case law on it. Also it will deal with the aspects as to whether the doctrine contradict the
principles on which the English legal system relies.
MAIN BODY
English legal system
The English legal system does not have a written Constitution rather they have a partial
unwritten Constitution. It is a system of the regulations which decide the governance of the
country which is political in nature. It is not a codified document just like other countries have.
The Supreme Court of the country UK have recognised the constitutional principle through its
judicial decisions which includes rule of law, Parliamentary sovereignty, democracy and the
upholding of the International law. The Supreme court have also recognised its some principles
in the Acts of Parliament which have special constitutional status.
The English legal system comprises of the statutory and the common law where the
statutory law are the law which are made by the supreme law making authority which is
Parliament and the common law is the legislation which is made by the judges of the court of
England and Wales. These both laws have same validity and relevancy2. There are two main
sources of law which are discussed below-
1 Novak M, 'Ensuring Uniform Case Law In Slovenia: Jurisprudence Constante, Stare
Decisis, And A Third Approach' (2018) 27 Studia Iuridica Lublinensia
2 Krishnakumar A, 'Textualism And Statutory Stare Decisis' [2016] SSRN Electronic
Journal

Primary source of law are such which are made by the supreme law making authorities.
These involve the following- Legislation- These are legisations which are made by Parliament. It comprises of the
House of Commons and House of Lords which convert the bill as law after many debates
and discussions and finally the bill is received the royal assent from the State of Head
who is the Royal Monarch. These are called the statutory laws which are applied in whole
country.
 Case laws- These are judge made laws which are enacted by the judiciary. The judges are
entrusted with two main roles relating to law making of which one is to interpret the
existing laws and the other is the law made by the judges through judicial precedents.
These are called the common laws3.
The secondary source of law are the legislation which are derived not from original
source but are the delegated legislation. These include the following- Legal encyclopedia- These are the excellent point to begin the research which consists of
the cases, key points and the legislation. Parliamentary and non Parliamentary publications- These are the background of the
law which is made by the Parliament. It includes the discussion papers, debates on the
particular area of the law.
 Law journals- These are the combination of the case commentaries and the articles
which helps in understanding the legal issues4.
Doctrine of Stare Decisis
Precedents is a legal doctrine. It is an approach on which the decisions of the court which
was made previously are considered. It is a very important doctrine in the UK common law as
which was originated from the main and principle doctrine of the English law i.e. “Stare
Decisis”. If court is giving any ruling or deciding any case, they are bound by the previous order
which was already passed by the court. Even if the court is of different opinion in a particular
case, the principle of Stare Decisis and doctrine of precedent is binding on the judges. Though a
3 Re E, Stare Decisis ([Federal Judicial Center] 2018)
4 Emmert F, 'Stare Decisis - A Universally Misunderstood Idea?' [2019] SSRN Electronic
Journal

decision can be overruled by the legislation but it is a complex process which courts have to
follow. The rulings of the court have two main elements which are: Orbiter Dicta and Ratio
Dicidendi. Orbiter Dicta means the observations made by the judges in the case scenario while
deciding the case & Ratio Decidendi means the point on which the judgement of the case is
delivered.
This is a Latin term which means 'to stand by the things which are already decided'. It is
the judicial doctrine under which courts follows the principles, rules and the standards which are
priorly decided by higher courts when they are deciding a case with the similar facts. It is the
legal rule through which the judges are under obligations to respect the precedents which are
established by the previous decisions. This doctrine is originated from the phase 'Stare decisis et
non quieta movere' which means to stand by the decisions or judgements and not to disturb the
undisturbed. It is meant that the courts must abide by the precedents and should not disturb the
settled matters.
The principle of stare decisis may be divided into two which are-
 The decisions or judgements which are given by the superior courts or by same courts in
the previous decisions are binding which the court itself and the inferiors court are bound
to follow.
 The court can overturn its own decisions or precedents but shall do so only only when
there is powerful reason to do and in that case also, it must be guided by the principles
from the superior, inferior and lateral courts5.
Another principle is relating to the persuasive precedents which reflect the broad
precedent guidance the court must draw upon so that it can reach all of its judgements.
In the tradition of common legislation, the courts decide the laws which are applicable to
the case by interpreting the statutes and apply the precedents which record why and how the
prior cases have been decided earlier. The common law system follow a stare decisis doctrine
under which the judiciary is bound by their own previous judgements in the same cases and all
the lower or subordinate courts are bound to give such decisions which are consistent with the
earlier decisions of the higher courts. For instance, the Court of Appeal and the High court are all
5 Laun R, 'Stare Decisis' (2017) 25 Virginia Law Review

bound by their previous decisions but the Supreme court of UK may deviate from its previous
decisions but the court rarely does this in practice6.
The subordinate court shall not make rule against any of the binding precedent even if it
feels that the judgement was unjust. A sub ordinate court must honour the findings of the law
which are made by the high courts.
The doctrine of stare decisis applies both horizontally and vertically which means that the
judicial precedent shall govern the subsequent decisions both by same court which established a
precedent and also by the sub ordinate courts which comes under its jurisdiction.
In case of Booth & Anor v R, the Supreme court held that the rules of precedent where the
circumstance arises, must be capable to enhance in order to ensure that they don't become
defeating for themselves. The Supreme court ordered that a binding precedent of the Court of
appeal must no longer be followed and the court gave the alternative test which shall be adopted.
The Court of Appeals is bound to follow the directions of Supreme court.
In the case of Young v. Bristol Aeroplane Co. Ltd7, where the Court of Appeals held that
it is bound to follow its own decisions and also those courts which are of coordinate jurisdiction.
The court of Appeals are also bound by the previous decisions of its own with the following
exceptions which are-
 When there is conflict between the two judgement of the Court of Appeals.
 When previous judgement of Court of Appeals was over ruled by the House of Lords,
which is now is Supreme court of UK.
 When the previous judgement was taken in the ignorance of the common law or statutory
law which would have led to a different conclusion.
 Where the earlier judgement is inconsistent with the European Community laws or with
the later judgement of European Court of Justice8.
The Court of Appeal in its judgement in the case of Young v. Bristol Aeroplane Co. Ltd
held that there are three exception to the rule of stare decisis which are discussed below-
6 U. C, 'Constitutional Law: Stare Decisis' (2016) 31 Michigan Law Review
7 (1944) 2 All E.R. 293.
8 Ye.A. Z, 'Judicial Precedent In The Legal System Of Ukraine And Classical English
Doctrine.

 The courts are bound to determine as to which two conflicting decisions it has to follow
that is of its own.
 The Court is bound to refuse to follow its a previous judgement on its own though which
is not expressly over ruled by it but in its opinion stand with the judgement of House of
Lords.
 The court is not bound to follow the decision which is of its own if it is satisfied that its
decision was given per incuriam. Like, when a rule or statute which is having a statutory
effect which could have impacted a decision which was not brought to the attention of an
earlier court9.
The three exceptions set out this this case were given by Lord Greeene M R where it
recognised that the first two are not really the exception to the general rule. The first rule is
where there are 2 judgements of the Court of Appeal which are irreconcilable themselves, the
court is free to choose between the two and hence ignore the other one. And the other exception
is when the decision of Court of Appeal which is not expressly overruled is inconsistent with the
subsequent decision of House of Lords. But House of Lords cannot be expected to over rule
every decision of it so the over ruling must be implied in some cases. The third exception is that
when the court was on any earlier occasion unaware of the relevant legislation or authority
which would have impacted its own judgement if it would have been aware of.
In a case of Bell v. Lever Brothers, Lord Denning specifically addressed the implications
of the case but Lord Denning inaccurately analysed the implications of it and mistakenly failed
to follow the case that would have been binding on it.
In the case of Wynne Finch v. Chaytor10, the court held that it was not bound to follow the
previous judgement as it failed to deal with the authority adequately. Another case where the
ruling of Young v. Bristol aeroplane Co Ltd was applied is the case of Rothwell v. Caverswell
Stone Coy11, where the court was cited with two different lines. The court faced the conflict with
its previous decision and bound itself considering that it is entitled to choose the authority which
it considered to be a good law.
9 Bennett G, 'Aspects Of The English Legal System' (2018) 1 Education and the Law
10 (1903) 2 Ch. 475.
11 (1944) 2 All E.R. 350.

In the case of Fisher v. Ruislip Northwood UDC, the court held that when the court
decides that there has been a battle between the two or more of the decisions and it purported to
solve it then that resolution is final that the subsequent court then cannot prefer the rejected
decision. The rejected decision shall be considered as over ruled decision and the court cannot
bind itself for that decision. By the ruling of Young v. Bristol Aeroplane Co. Ltd, the exceptions
were used by the courts which gave them room to not apply the doctrine of stare decisis and
opened the chances to follow such decision which is consistent with the law and not unjust.
Impact of the case on the doctrine of stare decisis
The ruling of the case Young v. Bristol Aeroplane Co. Ltd, have placed the negative
impact on the doctrine of stare decisis as this ruling have reduced the value of the doctrine. These
exceptions have decreased the value as the exceptions have provided room to the courts to not
bind itself with the doctrine of stare decisis. But on the other side, due to the coming of the
exceptions, the courts are free to give their ruling which they think are absolute and just and
leaves a room for the decisions which are unjust12. As the society evolves, the law also evolves,
so it is better to have exception to this rule so that the previous judgements which have been
arisen to due to earlier circumstances may not have the binding effect as the circumstances have
been changed. Another reason that this case have positively impacted the ruling of stare decisis is
that sometimes courts are unable to bring the right interpretation to the case which results in
injustice to the parties who have been involved in the case and the wrong judgement may result
in unjustness.
Contradiction of Doctrine of Stare Decisis
Stare Decisis basically is the legal doctrine which imposes a duty upon the court that they
have to follow the precedents and all the historical judgements passed by the court in the rulings
which are similar to them. This way it will save the time of the court by referencing to the old
rulings and passing the judgement in new law suit. Case law: “ Young v The Bristol Aeroplane
Co Ltd: CA 28 Jul 1994” is the first case in the UK in which the exceptions to the doctrine of
stare decisive was given. This case contradicts the basic principle of the common law. This
doctrine is considered as English legal system's heart. It is the most common and basis principle
on which the courts work.
12 Herrup C, and Horle C, 'The Quakers And The English Legal System 1660-1688' (2020)
34 The American Journal of Legal History

The case law is in contradiction to this doctrine as the exceptions clearly states that if the
court is in the opinion that the earlier ruling made by the court ignored or missed the terms of the
statute then the new ruling can be considered. Even if the different interpretation id possible from
the same case then it will also be taken into consideration instead of blindly following the
precedents.
The reason to why the court wanted to make over rulings of the precedent is not complex.
The reason was that it was noted by the jurists and the legal researchers that some of the
precedents are needs to be corrected and different judgement is to be delivered. With the change
in the norms of the societies and the facts which were underlying the legal issues were also
changing13. This made the argument more strong that there exist need for over ruling the
precedents. The court later decided the factors which is to be taken into consideration while over
ruling any case. The main factor of all is that the new decision must have a 'strong ground' and
no one can point out any flaws in it. There are many law suits whose precedent decisions were
changed by the supreme court i.e. over ruled by the court. Howe & Bannister14 was a decision
which was delivered by over ruling the decision of the DPP v NI v Lynch15 which was related to
the defence of duress in case of murder. There are several other cases which were landmark
judgements but because of the changes in the meaning of the law and with needs of the society,
court differently interpreted the meaning of them and accordingly the precedents were overruled
by the supreme court.
13 Darbyshire P, English Legal System (Sweet & Maxwell 2016)Theoretical Foundations
Of The Judicial Precedent' (2018) 10 Legal Horizons
14 [1987] 2 WLR 568
15 [1975] AC 653

CONCLUSION
From this above report it is concluded that, Stare Decisis is a legal doctrine in which
court gives its judgement on the basis of historical cases that means all the leading cases are used
in the cases with same facts or issues The main reason behind this is to ensure that the case with
same issues are dealt in same manner as earlier, and the courts have to follow the previous
judgements while marking the new one. The exception of Stare decisis has came from the case
Young v. Bristol Aeroplane company limited where they had provided certain exceptions for that
case that have both negative and positive impact on stare decisis. The positive impact is that
courts are allowed to make ruling on there own thinking and evidences, and the negative impact
is it decreased the value of stare decisis in the courts as by giving certain exceptions.
Furthermore, it contradicts the English legal system as the society is changing in a mean time it
bis important to amend the rules and the judgements with change in society and crimes people
needs the changes in the laws with there cultural and societal change.

REFERENCES
Books and Journals
Bennett G, 'Aspects Of The English Legal System' (2018) 1 Education and the Law
Darbyshire P, English Legal System (Sweet & Maxwell 2016)
Emmert F, 'Stare Decisis - A Universally Misunderstood Idea?' [2019] SSRN Electronic Journal
Herrup C, and Horle C, 'The Quakers And The English Legal System 1660-1688' (2020) 34 The
American Journal of Legal History
Krishnakumar A, 'Textualism And Statutory Stare Decisis' [2016] SSRN Electronic Journal
Laun R, 'Stare Decisis' (2017) 25 Virginia Law Review
Novak M, 'Ensuring Uniform Case Law In Slovenia: Jurisprudence Constante, Stare Decisis,
And A Third Approach' (2018) 27 Studia Iuridica Lublinensia
Re E, Stare Decisis ([Federal Judicial Center] 2018)
U. C, 'Constitutional Law: Stare Decisis' (2016) 31 Michigan Law Review
Ye.A. Z, 'Judicial Precedent In The Legal System Of Ukraine And Classical English Doctrine.
Theoretical Foundations Of The Judicial Precedent' (2018) 10 Legal Horizons