Precedent

Jeden z důvodů, kdy není nutné následovat precedent:

per incuriam, or when a case had been impliedly overruled by a later House of Lords decision, or where there was a conflict between two Court of Appeal judgments. This means that it will not be bound by decision reached in ignorance of relevant statute law, or relevant and binding prior precedent of the Court of Appeal or the House of Lords, or unless the precedent had been expressly or impliedly overruled by a subsequent House of Lords decision. (Cf. also Duke v. Reliance Systems Ltd. (1988) Q.B. 108, 113). (s. 326, Interpreting Precedents, United Kingdom)

Filozofické pozadí precedentu

Historically, there have been two principal rationales for precedents

having the kind of status that they have in our system. These

are the declaratory theory and the law-making theory of precedent.

A third view discernible in modern times, but with ancient roots,

might be called the 'determinative theory'.

The declaratory theory represents precedents as evidence of the

law, rather than constitutive of it. The law is conceived as a body of

principles about rights and duties and the like. It is implemented

only partially in statutes, and carried into effect by judicial decisions. (s. 330, Interpreting Precedents, United Kingdom)

This is

especially so where there has grown up a line of decisions on similar

topics in similar tenor. But the law itself is only evidenced and

declared by, not made by, these decisions. (s. 330)

This doctrine of the independent existence of law presupposes an

appropriate ontology for law, and this was supplied by either a

theory of rationally evident natural law or a theory of law-as-custom,

especially as 'learned custom'. Quite often, indeed, the natural law

and the custom view were presented as mutually supportive and

even logically linked. (s. 330)

What is important in the declaratory approach is that it is essentially

custom that gives the rationale for precedent since this gives us

a reason for doing 'what we have always done' as being evidence for

some deeper truth (the will of God or the best way of going about

things). (s. 331)

Teorie soudcovské tvorby práva

Judicial law-making theories start from a denial of the natural law

premises of the declaratory theory. A basic tenet of legal positivism is

that all law derives from authoritative decision, hence all human law

from authoritative human decision. There is no essence of law beyond

or behind what is decided as law by some competent decision

maker. From this it follows obviously that, if precedents are evidence

of the law, they can be so only because judges are accorded authority

to make law through their decisions. Conversely, the very recognition

of precedent as evidence of the law amounts to recognition of

the power of the courts to make law. (s. 331)

Jeremy Bentham, father of

English legal positivism, was particularly strong in his denunciation

of the declaratory theory as a form of mystification of law, hiding the

power of 'Judge and Co', and insistent on recognition of the fact of

'judicial legislation' through precedent. His followers, from John Austin

through to H.L.A. Hart, though less critical of judges and of the

common law than Bentham, retain firmly the view that precedent is

a 'source of law' in the sense that judicial decisions are constitutive

rather than declaratory of law. (s. 331)

During the nineteenth century, and into the twentieth century, the

positivistic view strongly predominated in the legal thought of the

UK. This had considerable impact on the practice of the courts in

relation to precedent, in two ways. First, there was a tendency to ever

stricter doctrines of binding precedent, and to hierarchically ordered

rankings of binding precedent, on the ground that this recognized the

fact of judicial law making, but kept it to a minimum while establishing

a rational hierarchy of interstitial legislative authority among the

courts. Second, there was a considerable theoretical focus on trying to

find exact ways of identifying the rules created by precedents, hence

much focus on elucidations of the idea of the ratio decidendi. (s. 332)

Determinative Theory

The modern stress (cf. Dworkin, 1978; 1986) is on law as grounded

in principles partly emergent from practice and custom, partly constructed

out of moral or ideological elements that bring together

practice and contemporary values in a coherent order (MacCormick,

1984). Legal rules and judicial rulings on points of law are then to be

understood as 'determinations' (in the Thomistic sense) of background

principles - neither simple deductions from them nor arbitrarily discretionary

decisions about them, but partly discretionary decisions

as to the best way of making the law determinate for a given (type

of) case (Finnis, 1985). From this, the best present day rationale of

precedent would seem to be what we would call a 'determinative

theory', which can well account for the continuing role of judicial

precedent as a 'source of law', but a defeasible one. (s. 332)

Doctrines like the 'determinative theory' which suggest a more holistic

approach to legal systems or, more likely, to particular branches of

law, favour the development of a strong sense of underlying principles

proper to particular fields and branches of law, and the taking of

a coherent view of legal doctrines as congeries of principles, values

('policies') and their determination through decision making which

is truly sensitive to the full particularity of contexts of decision. (s. 334)

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