History of Precedent

In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law “common” to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system – citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today’s civil and criminal court systems.

Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king’s judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge’s interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. Once judges began to regard each other’s decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name “common law.”

Henry II’s creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. Eventually, Becket was murdered inside Canterbury Cathedral by four knights who believed themselves to be acting on Henry’s behalf. Whether Henry actually intended to bring about the assassination of Becket is debatable, but there is no question that at the time of the murder, the two men were embroiled in a bitter dispute regarding the power of Royal Courts to exercise jurisdiction over former clergymen. The murder of the Archbishop gave rise to a wave of popular outrage against the King. Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes (see also Constitutions of Clarendon).

Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation. Since the 12th century, courts have had parallel and co-equal authority to make law — “legislating from the bench” is a traditional and essential function of courts, which was carried over into the U.S. system as an essential component of the “judicial power” specified by Article III of the U.S. constitution. Justice Oliver Wendell Holmes, Jr. observed in 1917 that “judges do and must legislate.” There are legitimate debates on how the powers of courts and legislatures should be balanced. However, a view that courts lack law-making power is historically inaccurate and constitutionally unsupportable. (Via Wikipedia)

This is a stub from wiki. It is so improper. It will be improved some time. I hope.

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Precedent

As per the doctrine of Precedent a.ka. stare decisis the previous decision of the court or of superior court is binding and the law pronounced by it can not be unsettled. This was and this is the English Law of Precedent. However it creates a problem. The Privy Council is the Supreme Court of England and there is no Court higher to it. Therefore if a decision say delivered about hundred years back is found to be out of context it remains binding and can not be unsettled. To rectify this problem, in the year 1966 the Privy Council changed its practice by announcing the following Practice Statement to the House:

‘Before judgments are delivered today, I wish to make the following statement on behalf of myself and the Lords of Appeal in Ordinary:
“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
“Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
“In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
“This announcement is not intended to affect the use of precedent elsewhere than in this House.”‘

–Statement made by LORD CHANCELLOR (LORD GARDINER) on 26 July1966.

(For the record the Privy Council has now been substituted by Supreme Court of England by Constitutional Reforms Act of 2005)