Consider How the Doctrine of Binding Precedent Operates in the English Courts, Having Particular Regard to Its Advantages and Disadvantages.

Judicial precedent is the process by which judges follow the decisions in previous cases where the case facts are sufficiently similar. The main basis for this doctrine is the application of the legal principle Stare Decisis (Elliot and Quinn 2009). Translated this means let the decision stand, the practical application of this means the inferior courts are bound by the decisions of all courts above them in the judicial hierarchy. The principle of Stare Decisis working within the judicial hierarchy allows for consistency and predictability in the law.

It was once considered that following this principle that Judges were merely declaring the existing law. This viewpoint was referred to as the Declaratory Theory (Friedmann 1967). Lord Esher stated in Willis v Baddeley [1892] 2 QB 324 (McKinney and Michie 1896):

"There is … no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable."

However this does not take into count the other two Latin principles that the doctrine of judicial precedent is based on. The Declaratory Theory (Friedmann 1967) has since been ‘over-ruled’ or revised with the modern view that judges do make law. Lord Radcliffe stated (Radcliffe 1968, as cited in Zander 2004):

"… there was never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can he help it?"

The reality is that judges are continually applying the existing rules to new fact situations and thus creating new laws.

The decision of the judge falls into two categories; Ratio Decidendi (Elliot and Quinn 2009) and Obiter Dicta (Elliot and Quinn 2009). Ratio Decidendi translated is the reason the decision is reached. When a judge delivers a sentence in a case they outline the facts which have been proved as evidence. The law is then applied to the case...