However, I will discuss how common law also can create uncertainty and can be in conflict with the constitution and how the legal decisions of European Court of Justice are becoming binding on UK courts and the consequences of Human Rights Act 1998. In addition, I will also discuss how the doctrine of precedent to some extent create certainty at the same time produces uncertainty and have contradictory outcomes within the court system in UK. In the same time doctrine of precedent has some important advantages as well it also has considerable disadvantages and may be producing some chaos in the same time.
The practice of binding precedent within the court hierarchy and the discretion of judges to make law in the English Legal System
The doctrine of precedent in the context of the English legal system means the judges in the courts make the rules for a particular case before the courts given the facts of the case in a given area of law. If in the future, similar cases arises they use the same rules or reasons they use to make legal decisions. In the English legal system the precedents of the Higher courts are binding on lower courts and the court structure is hierarchical.
In the English courts system the House of Lords is the pinnacle of the court system. This is the highest court. The precedents of the House of Lords are binding on the lower courts such as the Court of Appeal and other lower courts. However, the precedents are not binding on the judges of the House of Lords or the precedents are not binding on it self.
In addition, due to European Community (EC) law and the European Court of Justice (ECJ) is superior to the House of Lords. That is the House of Lords have to follow the European Court of Justice legal rules and reasons to decide cases and their precedents becomes non binding and the ECJ legal rules becomes binding on lower courts as well.
That is the European Community Law affects the status of House of Lords, which is to some degree different legal system compared to the English Legal system.
In addition, as a consequence of Human Rights Act 1998 the European Court of Human Rights (EctHR) is part of the jurisprudence of UK courts. That is the European Community Law and the Human Rights Act has to greater degree affected the precedents of the House of Lords, which are not in line with these laws and has to be refined or totally abandoned. This produces to some degree a reduced role of precedents in the English Legal system in the present times and also produces some destabilizing effects on existing legal practice. However, it has to be said these changes are evolutionary and did not produce chaos within the existing English Legal System and has been incorporated in to the English Legal system and the Legal system is functioning in UK albeit the reduced role of doctrine of precedents within the UK Court structure.
As mentioned above the House of Lords given the doctrine of precedents they have the discretion not to follow their own previous precedents and can depart from previous precedents of particular cases or classes of cases even though they don't depart frequently. However in practice they have departed from their own precedents in practice. This can produce uncertainty due to the practice of doctrine because of the discretion of judges to make law particularly in the House of Lords. In practice the doctrine of precedents are not a mechanical process but a creative one and one must not underestimate the judges to make law within the English Legal System given the discretion of judges. This ability to make law my judges may be in conflict with the constitutional power of courts within the overall English legal System and in that sense the doctrine of precedents in practice may be a source of chaos or a source of destabilizing effect on the legal system.
In effect as discussed above the doctrine of precedents may be in conflict with other sources of law like legislation or constitution due to the discretion of judges and the way they interpret the cases before courts and the rules of interpreting may produce conflicting rules within the court hierarchy and there fore one can argue the doctrine of precedent on the one hand produces certainty due to the prediction of outcome of a case given the application pf previous rules applied to a similar case however due to discretion of judges to make law and over rule precedents and conflicting rules may also produce uncertainty. That is in practice the doctrine of precedents produces contradictory outcomes and there fore it is a source of chaos or to some extent produces instability.
