Lord Denning on Stare Decisis

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In our legal system, one of the most fundamental concepts is doctrine of precedents. The legalese term for this is “stare decisis“, which translates  to “let the decision stand”.  In a very general sense,  it means that if a court has already decided on a particular legal issue in one case, the court should follow its decision on that same issue in subsequent cases.

Lawyers work hard to find case law to support their client’s position. I often get so immersed in the finer points of legal research, that I find it refreshing to be reminded of why many of us become lawyers in the first place: to seek truth and justice.

I remember being introduced to Lord Denning’s decisions when I was a law student at Osgoode, a famous judge in England who contributed substantially to the development of the law.   I will quote my favourite passage from a lecture he gave at Oxford, called “From Precedent to Precedent”:

 

…Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles…

Many a lawyer will dispute this analogy with science. “I am only concerned,” he will say, “with the law as it is, not with what it ought to be.” For him the rule is the thing. Right or wrong does not matter. That approach is all very well for the working lawyer who applies the law as a working mason lays bricks, without any responsibility for the building which he is making. But it is not good enough for the lawyer who is concerned with his responsibility to the community at large. He should ever seek to do his part to see that the principles of the law are consonant with justice. If he should fail to do this, he will forfeit the confidence of the people. The law will fall into disrepute: and if that happens the stability of the country will be shaken. The law must be certain. Yes, as certain as may be. But it must be just too.*

 

Even though this passage was delivered in 1959, I think it is just as relevant today. Certainty in the legal system is a great virtue, but it does not mean precedents should be followed blindly.   The doctrine of precedents exist to serve the fundamental principles of truth and justice.

 

* The Rt Hon Lord Denning, Master of the Rolls. “The Discipline of Law”. Butterworths, London 1979.

 

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