By Neil Duxbury
ISBN-10: 0511394845
ISBN-13: 9780511394843
Neil Duxbury examines how precedents constrain criminal decision-makers and the way criminal decision-makers sit back and stay away from these constraints. there isn't any unmarried precept or concept and is the reason the authority of precedent yet particularly a couple of arguments which bring up rebuttable presumptions in favour of precedent-following. This ebook examines the strength and the restrictions of those arguments and indicates that even though the relevant requirement of the doctrine of precedent is that courts recognize previous judicial judgements on materially exact proof, the doctrine additionally calls for courts to go away from such judgements whilst following them may perpetuate felony mistakes or injustice. not just do judicial precedents no longer ‘bind’ judges within the classical-positivist experience, yet, have been they to take action, they might be sick fitted to common-law decision-making. Combining ancient inquiry and philosophical research, this publication will help someone looking to know how precedent operates as a common-law doctrine.
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26. 24 (‘[A]ll the sentences of precedent judges that have ever been, cannot altogether make a law contrary to natural equity . . [T]here is no place in the world, where [a manifest condemnation of the innocent] can be an interpretation of a law of nature, or be made a law by the sentences of precedent judges, that had done the same. For he that judged first, judged unjustly; and no injustice can be a pattern of judgment to succeeding judges’). WHY DOES ENGLISH LAW HAVE A DOCTRINE OF PRECEDENT?
It is not surprising, therefore, that common law courts of last resort have overruled their own precedents only when there are special reasons for so doing; indeed, for much of the twentieth century the House of Lords went so far as to accept the principle that it was virtually always bound to follow its own decisions. No doubt one of the reasons that courts overrule only exceptionally is that the court which overruled frequently would risk making a mockery of stare decisis. One of the objectives of chapter 4, nevertheless, is to show that overruling is not merely compatible with but peculiarly supportive of stare decisis; for if it is accepted that a purpose of the doctrine is to curb the arbitrary exercise of judicial discretion, courts ought to be able to overrule precedents, their own precedents included, in order to correct earlier 28 THE NATURE AND AUTHORITY OF PRECEDENT precedents which misrepresent the range of legitimate judicial discretion on particular points of law.
CL, 135. 79 The argument that judges can make law is not, however, the one which Hart wanted to emphasize. ’81 The rule-sceptic’s ‘contention that . . 82 3. A theory of precedent? Hart’s notion of the internal point of view enables us to see that the language of classical legal positivism does not serve us well for the purpose of understanding the authority of judicial precedent. Indeed, his reflections help us to see why one nineteenth-century civilian writer should have believed (incorrectly) that precedential authority has to be understood ‘less as a command and more as advice, compliance with which cannot reasonably be withheld’,83 and why one modern-day 75 79 83 CL, 126–7.