Precedent, that is, decisions in previous similar cases, have
for many hundreds of years been important in the development
of English law, but until the latter part of the nineteenth
century were only persuasive; that is, a judge would be influenced
by the decision in a previous case, but did not consider himself
bound by it.
The modern doctrine of precedent, under which a judge is bound
by the decision in a previous case, even if he considers it
to be unjust or illogical, is of comparatively modern origin.
In the early days of common law, judges considered that their
judgments were merely declaratory; common law was based on
general custom, and they were merely enunciating what that
custom was. This attitude left no room for the development
of a doctrine of precedent. In any event, there was no method
of recording judgments fully and accurately.
The development of printing and the improvement in the standards
of reporting meant that from the sixteenth century onwards
more attention was paid to decisions in previous cases.
By the early nineteenth century it had been accepted that
regard must be paid to previous decisions and that it was
not for the courts ‘to reject them and abandon all analogy
to them’. Later in the nineteenth century two events
occurred which laid the groundwork for the establishment of
the system of binding precedent:
-in 1865 the Council of Law Reporting was created, and this
ensured that for the future there would be a consistent and
reliable system of reporting cases. There had been many earlier
series of reports, but their reliability varied considerably;
-the whole system of courts was reorganised by the Judicature
Acts 1873-1875 and the Appellate Jurisdiction Act 1876, and
this made easier the task of recognising the hierarchy
of courts.
See also :
Advantages
and Disadvantages of Precedent
Judicial
Precedent Case Law
Law
Reports
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