A CRITICAL ANALYSIS OF JUDICIAL PRECEDENT
In this article, I will be discussing and analyzing what judicial precedent is all about in the legal profession.
Expressed in its simplest term the doctrine of judicial precedent also known as satre decisis is that decision of a judge once given on a question of law binds both the judge himself and subsequent judges in a court of lower rank to decide the same question of law in the same way. Thus, if the facts of a case are A, B, C, and D and after due consideration, the judge accepts A, B, and C as the material facts while discarding D, and gives a judgment Y, the doctrine states that in any other case where the material facts are A, B, and C, the judge must also give a decision which must be Y.
According to J.H. Farrar, English case law is the product of practical reasoning emerging from decision-making and combining the attributes of reasoning by analogy with those of reasoning by rules. The analogy is an imperfect form of induction based on a number of points of the resemblance of features, attributes or relations between cases. Such analogical process goes beyond the consideration of the relevance and importance of such features, attributes, and relations. Whereas analogy is physical science like chemistry serves as a ‘guidepost’ as to which further investigation could be carried on, in Law, analogy consists of determined inference based on induction made from the point of resemblance of features, attributes or relations between cases and of course the use of the resemblance as a normative step which implies the application of the old rule to the new case. The analogy in law also involves a process of analysis and justification. The analysis process takes place within the framework decision making.
Secondly, case law also involves reasoning by rules. Classification techniques are adopted by the judge for the enunciation of these rules. The process involves moving from the specific to the general and of course the identification of the species, concepts or categories. The identification of species which are members rather than parts leads to the enunciation of concepts or rules to embrace such species. Lastly, as rules or concepts develop broadly, statements of principles are made based on them. The statements of principles in most instances express high values or tradition of the legal system recognized by law. The whole of this process has an inductive character.
Nevertheless, there are instances where a rule or principle established is used in a manner that suggests deductive character and indeed the process of reasoning takes a deductive form which gives room for discretion. Discretion could either be in the selection involved in the formulation of the minor premises. The conclusion is drawn as a matter of choice and not as a matter of logical necessity. This process of choice is predicated on exercising reasoning power. The judge hears arguments from both sides and weighs them up. What is more, policy and value consideration exert pressure on the judge? The judge gives his judgment based on inferences drawn. Deductive process concerns not only with rationalizing the inferences drawn, but also inextricably joined to justifying it.
The application of the doctrine of judicial precedent once gave rise to the controversy “whether judges do make laws or not.” R, Cross in his book Precedent in English Law gave an elucidating account on this issue. After a careful examination of the notions of people in the caliber of Sir Mathew Hale; Lord Esher; Willes J; Sir George Jessel; Mellish L.J, Bentham and the decision in the case of Donoghue v Steveson (1958) 3 FSC 46, R. Cross concluded that:
Judges must decide cases as they arise: when facts are not clearly covered by a status; when there is room for two views concerning the meaning of the statutory word; and when no past decision is clearly in point… What can our Judges do but make new law?