1. Precedent in English Law: A View from the Citadel.
- Author
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Whittaker, Simon
- Subjects
LAW ,LEGAL judgments ,ACTIONS & defenses (Administrative law) ,JUSTICE administration - Abstract
In this paper, the author seeks to explain to lawyers other than from a common law background the approach of English courts to the authoritative impact of previous decisions ('precedents' if a first sense), an approach which English law has famously (or notoriously) set in the framework of the 'doctrine of precedent' by which previous decisions can bind subsequent courts ('precedent' in a second sense). In order to do so, the author first sets this doctrine in the context of certain particular features of the wider legal system (the constitutional position of judges, the relationship between statute and the common law, the unity of English judicial institutions and the relative roles of judges and the parties). The author then describes the formal doctrine of precedent but then seeks to explain the use of earlier authority by modern English judges, illustrating this by reference to the recent decision of the House of Lords in Shogun Finance Ltd v Hudson. The picture which emerges is much more complex than the formal doctrine suggests: rather than following previous decisions in a mechanistic way, English judges engage closely with the variety of approaches, techniques, principles and considerations which they find in earlier judgments, and they evaluate the substantive arguments which these address. In all this, they are willing to innovate, though they are also conscious of the practical and constitutional limitations on judicial law-making. In a final part of the paper, the author considers whether English judges extend their treatment of common law cases to decisions of the European Court of Justice or the European Court of Human Rights. [ABSTRACT FROM AUTHOR]
- Published
- 2006
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