'In the appellate court of last resort a balance must be struck Essay

'In the appellate court of last resort a balance must be struck between the need on one side for the legal certainty resulting - Essay Example It has generally been observed that the pragmatic value of precedent gains prominence, whereas its justice seeking aspect tends to be overlooked. As such, precedent is the intersection between law and justice.2 In England and Australia, the highest courts tend to regard the decisions of their lower but superior courts as being highly persuasive. For instance, the highest court of Australia, namely the High Court of Australia accords considerable importance to the rulings made by the Supreme Courts of the various states. Precedent in its narrow sense, or the doctrine of stare decisis, denotes that the courts of appeal, in the normal course, consider themselves bound by their own rulings. 3 An important illustration of this is provided by the stance of the House of Lords till the year 1966. Prior to that year, their Lordships had considered their previous decisions to be sacrosanct, and had stated that they would not overrule them. This has changed, and the highest courts of Australia and the UK have now adopted the view that they would decide contrary to their previous rulings, provided there was a very strong reason for such departure. 4 Despite the promotion of certainty and consistency by the doctrine of precedent, it does suffer from some drawbacks. ... Even if the statements made in previous cases are clear, there could be confusion as to whether that statement had been a component of the ratio decidendi of that case.5 This makes it difficult to decide whether it had been binding or was just obiter dicta. Another major issue is the following. In Australia, appellate cases are usually heard by three judges in the Supreme Courts of the states. The corresponding number of judges is five in the High Court. It has been frequently observed that these judges will generally provide individual judgements. The result is several sets of legal reasons. Moreover, it is common for each judge to express opinions that differ from the other judges hearing the case. Such differences could have a critical impact upon subsequent cases. Consequently, it becomes very difficult to identify what is binding.6 Although it seems that the doctrine of precedent could hinder change and development in the law, this is only partially true. The development and cha nge in law is a continuous process, which is on the whole unspectacular. Precedent is not interpreted in a mechanical manner, and the extant law tends to be subjected to a continuous process of analysis and reinterpretation. Past events are reinterpreted by each generation, and this changes history. Similarly, the extant law undergoes continuous reinterpretation and is comprehended afresh.7 Thus, whenever, a superior court judge examines a disputed legal point and there is a reporting of the decision taken by the judge, a certain amount of change transpires in the totality of the common law. In Davis v Johnson,8 the substantive issues considered related to the degree of discretion bestowed upon county courts by section 1 of the Domestic Violence and Matrimonial