“Judicial Precedent should not be a source of law. The benefits of judge-made law are undermined by the lack of it’s democratic legitimacy.” Critically analyse this statement, and decide whether or not you agree with it. Essay Example
Judicial Precedent Should not be a Source of Law
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Judicial Precedent should not be Source of Law because it lacks Democratic Legitimacy
There has been increased debate in the recent years among the legal scholars and society at large of whether judicial precedent should be used by the jury. Questions are also being raised whether judge-made law is democratically legitimate. There are those who advocating for a complete abolition of judicial precedent in the judicial system and they argue that judges should be given freedom to consider new approach to every individual case without referring to a similar case that had been handled before. They believe that cases cannot be completely identical because of the social, political, and economic changes in the society.1 Proponents of the doctrine, on the other hand, argue that it ensures the stability, predictability, and consistency, which makes it inevitable in the judicial systems if justice is to be achieved. The essay, therefore, critically analyzes the doctrine by clearly defining it, interrogating its relations with democracy, considering the pro and cons before considering whether it should be a source of the law or not.
Judicial precedent, commonly known as stare decisis by legal scholars, focuses on the influence and the value of past legal decision of various law cases, which should be used as references. The perspective of the doctrine is that judges should stand by what other judges have decided before in a similar case law.2 The argument behind the doctrine is that similar cases should be accorded the same treatments for the consistency and certainty for fairness and justice to be realized. The doctrine requires that senior courts must follow judicial decisions make by a senior courts in handling s similar case. In addition, courts of appeal are bound to follow their decisions that were previous made in a similar case. Judicial precedent, therefore, is practiced by many judicial systems across the world.
Some legal scholars and other segment of the society argue that judge-made law has no democratic legitimacy. The argument is based on the common concept that people should be governed by the law that has been agreed upon by the majority either directly or through their representatives. Democracy is known to be the rule of the majority and lack democratic legitimacy in making laws that govern the people. Democracy requires that judges should only apply the laws that were passed by the majority and not their laws.3 The argument is that the non-elected and the minority like judges should not make laws and apply them on people.
The above arguments about democratic legitimacy may not be realistic because, in real sense, the laws are not made by the people through their representatives, but very few people, especially legal experts like judges.3 The parliament only plays the role of passing the laws on behalf of the people, but it plays minimal role in drafting the laws. Therefore, many laws governing the people in the society are made by the minority and not the majority. Further, the rule the consent of the majority in the application of the law may be necessary, but is not always sufficient because it depends on other factors in the society.
It is not easy to enact laws that address the needs of everyone in the society and in most cases the majority is only used as a rubberstamp by the few elected leaders who are serving their own interest and not the interest of the people. Therefore, democratic legitimacy of judge-made law should not be based on the majority rule because the main aim of enacting any law is to protect the right of individual members of the society and should be fair to all of them.3 Even though judge-made law, in some instances, has been misused, its main purpose is to protect the rights of individual and to promote fairness and justice to all people. Democratic legitimacy should not be limited to majoritarianism, but it should focus on the rights of the individuals and the minority, and it should as well limit the powers of the majority.
Judges have been active for a long time in both democratic and undemocratic societies. In theory judges should only apply laws that are passed by parliaments but this rarely applies in practice. Judges always make their decisions based on previous cases in the current cases.4 There are economic, political, and social changes that they do consider while making legal decisions, which mean they do not strictly follow popular law in making their rulings. Judge-made law may not have majority consent, but they are fair, just, and they serve the interest of individual members of the society.5 For instance, in a case between Miliangos and George Frank in 1979, the House of Lord ruled that all fees and damages that were to be paid in the UK court were to be Starling, but because of globalization and increased international trade it changed its previous ruling to accommodate changing circumstance.6
The big question, therefore, is whether judicial precedent should be source of law or not. The question can only be answered adequately by analyzing the pros and cons of the doctrine. The question is controversial because both the proponents and those opposing the doctrine have strong arguments to support their stand. Consequently, the question requires some flexibility and objectivity for it to be addressed sufficiently.
The main arguments of the proponents of the doctrine are that it ensures the certainty, predictability and consistency of law.7 They argue that there should be predictability and certainty of law, which enable judges to effectively manage a case as per the requirements of the law. After the court has determined a particular principle of law as a fact, the same principle should be applied in similar future cases. This allows the jury, lawyer, and individuals to predict legal decisions by the court, which is important in ensuring behavioral guidelines. Predictability of court decisions helps in enhancing justice because it encourages individuals to act within the legal limits. Individuals also will be in a position to predict court decision and this may ease conflict resolution as some people would prefer solving their disputes outside the court. Certainty is also important because it ensures that the legal decisions are not changed because of inconveniency or misconduct of judges.
The doctrine also promotes efficiency and equality, discourages prejudice and impartiality in the legal system.7 The doctrine encourages efficiency by discouraging re-argument of similar cases, which saves time and limited resources available. Judicial Precedent also prevents judges from any form of prejudice or impartiality. The doctrine, therefore, discourages personal opinions because it forces judges to adhere to set standards and not his subjective judgment. Precedent also ensures equality because it ensures that similar cases are treated in the same manner irrespective of the social or economic status of the parties involved. The doctrine, therefore, ensures justice to every member of the society because it sets standards that should be followed in handling similar cases.
In addition, there have been many cases of injustice due to error made by judges in delivering their rulings. The doctrine, therefore, reduces the errors made by judges and it also corrects the errors made in previous rulings.7 Consequently, there will be limited judicial errors in the future, which is important in ensuring justice to all members of a society. Furthermore, judicial precedent makes the victims and the perpetrators to believe that justice has been done, thereby, enhancing harmony among people.
Even though there are strong points and arguments that support the doctrine, it also has some weaknesses that have helped in bending the justice in favor of some individuals or groups in the society. The main argument against judicial precedent is its rigidity, especially when it is legally binding.8 There are many changes that are taking place which may not have been there in the past. There are cases where a senior court made a mistake that may hinder justice, but a junior court is legally forced to follow the same decision in a similar case. As a result, there has been continuous injustice in the name of practicing judicial precedent. A case may be similar a previous case, but difference in time span makes it totally different due to the changes in the society. For instance, the House of Lords, in some cases, has changed its previous rulings to accommodate changing circumstance or errors that might have occurred. In 1986, it reversed its previous rulings in a case between R and Shivpuri, which was about criminal attempt. Its previous ruling between Ryan and Underton in 1985 was criticized by the public, which made it to change its approach in a similar case that was involving R and Shivpuri. The example shows that strictly relying on precedents can perpetuate injustice.9
There are so many similar cases that are adjudicated by judges, which always lead to confusion is selecting relevant precedents to be used.9 The precedents to be used depend on the ability of a judge to read many previous similar cases, which may be time consuming and may delay justice. The high number of similar precedents may also make judicial system more complex because finding the most relevant case may be tedious. Consequently, a judge may have limited time and therefore he can choose a precedent that is not similar to the current case. Therefore, the confusion and many precedents available can lead to time wastage and injustice.
After considering both sides of a coin, it is clear that judicial precedent is inevitable in any judicial system and it should be taken as part of law that govern the people. Leaving judicial open to any ruling among judges is likely to encourage impartiality, prejudice, lack of objectivity, and wastage of time and resources. Consequently, there will be increased injustice in the society. Judge-made law may not have the support of the majority, which makes it lack democratic legitimacy, but in reality it is the judges and a few individuals that make the same laws that are passed by the representative of the people, parliament. Like any other thing, judicial precedent has pros and cons, but the former outweighs the latter.
Bordalo, Pedro, Nicola Gennaioli, and Andrei Shleifer. Salience theory of judicial decisions. No. 19695. National Bureau of Economic Research, 2013.
Kane Jr, John L. «Public Perceptions of Justice: Judicial Independence and Accountability.» Journal of the National Association of Administrative Law Judiciary 17, no. 2 (2013): 2.
Loughran, John T. «Some Reflections on the Role of Judicial Precedent.» Fordham L. Rev. 22 (1953): 1.
MacIntyre, Ewan. 2009. Essentials of business law. n.p.: Pearson Longman, 2009. Bibliotheksverbund Bayern, EBSCOhost (accessed October 27, 2015).
Piana, Daniela. Judicial accountabilities in new Europe: from rule of law to quality of justice. Ashgate Publishing, Ltd., 2013.
The Doctrine of Judicial Precedent (2011): 6. Retrieved from http://www.sze.hu/~kallay/letolt/2011/februar/the%20doctrine%20of%20judicial%20pre cedent.pdf
Vong, David. «Binding precedent and English judicial law-making.» (2013).
1Loughran, John T. «Some Reflections on the Role of Judicial Precedent.» Fordham L. Rev. 22 (1953): 1.
2 The Doctrine of Judicial Precedent (2011): 6. Retrieved from http://www.sze.hu/~kallay/letolt/2011/februar/the%20doctrine%20of%20judicial%20precedent.pdf
3Piana, Daniela. Judicial accountabilities in new Europe: from rule of law to quality of justice. Ashgate Publishing, Ltd., 2013.
4Kane Jr, John L. «Public Perceptions of Justice: Judicial Independence and Accountability.» Journal of the National Association of Administrative Law Judiciary 17, no. 2 (2013): 2.
5Bordalo, Pedro, Nicola Gennaioli, and Andrei Shleifer. Salience theory of judicial decisions. No. w19695. National Bureau of Economic Research, 2013.
6The Doctrine of Judicial Precedent (2011): 6. Retrieved from http://www.sze.hu/~kallay/letolt/2011/februar/the%20doctrine%20of%20judicial%20precedent.pdf
7Vong, David. «Binding precedent and English judicial law-making.» (2013).
8MacIntyre, Ewan. 2009. Essentials of business law. n.p.: Pearson Longman, 2009. Bibliotheksverbund Bayern, EBSCOhost (accessed October 28, 2015).
9 The Doctrine of Judicial Precedent (2011): 6. Retrieved from http://www.sze.hu/~kallay/letolt/2011/februar/the%20doctrine%20of%20judicial%20precedent.pdf
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