The Doctrine

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The Doctrine The doctrine of precedent is based on the need for certainty in the

law. It means that lawyers can properly advise their clients on the

basis that like cases will be treated alike, rather than judges making

their own random decisions which nobody could predict. This helps

people plan their affairs. According to Lord Denning, ‘It is the

foundation of our system of case law’. However, Denning was ‘against

is its too rigid application - a rigidity which insists that a bad

precedent must necessarily be followed’.

It is the doctrine’s rigidity that can prevent developments to meet

the changing needs of society. However, this was recognised in the

House of Lords 1996 Practice Statement.

In addition, judges in the lower courts are adept at avoiding the

doctrine’s rigidity. A judge may distinguish the awkward precedent on

its facts - arguing that the facts of the case under consideration are

different in some important way from those of the previous case and

therefore the rule does not apply.

A precedent may be distinguished on a point of law; by arguing that

the legal question answered by the precedent is not the same as that

asked in the instant case.

Courts may distinguish a precedent by stating that the precedent has

been superseded by more recent decisions, and is therefore outdated.

Courts may give the precedent a very narrow ratio decidendi or argue

that the precedent has no clear ratio decidendi, for example because

the ratio of one judge in a case is different from others in the same


Courts may cla...

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...t of the Human Rights Act 1998 is as yet uncertain. But there

is no doubt that case law will be developed according to society’s

changing needs, for example that our privacy should be respected.

Before the Act, the courts followed Kaye v Robinson in denying the

right to privacy. However, in the ground-breaking case of Douglas v

Hello Ltd. Here, Sedley LJ said that there is ‘a right of privacy

which English law will today recognise and, where appropriate,

protect’. That said, there is, as yet, no tort of privacy.

Lastly, there are a number of ‘morality cases’ where the changing

mores of society are recognised. For example, in Gillick v West

Norfolk AHA, the issue was whether it was morally acceptable to

prescribe contraceptives to under 16 year olds without parental

consent. It was and this reflects how we live today.

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