Z Iurium Wiki
Přejít na: navigace, hledání

Jeden z důvodů, kdy není nutné následovat precedent:

per incuriam, or when a case had been impliedly overruled by a later House of Lords decision, or where there was a conflict between two Court of Appeal judgments. This means that it will not be bound by decision reached in ignorance of relevant statute law, or relevant and binding prior precedent of the Court of Appeal or the House of Lords, or unless the precedent had been expressly or impliedly overruled by a subsequent House of Lords decision. (Cf. also Duke v. Reliance Systems Ltd. (1988) Q.B. 108, 113). (s. 326, Interpreting Precedents, United Kingdom)

However, 'leading cases' as such have really no special authority

as precedents; they are features of the doctrinal evolution of law as

much as of the doctrine of precedent itself. (s. 341, Interpreting Precedents, United Kingdom)

Filozofické pozadí precedentu

Historically, there have been two principal rationales for precedents

having the kind of status that they have in our system. These

are the declaratory theory and the law-making theory of precedent.

A third view discernible in modern times, but with ancient roots,

might be called the 'determinative theory'.

The declaratory theory represents precedents as evidence of the

law, rather than constitutive of it. The law is conceived as a body of

principles about rights and duties and the like. It is implemented

only partially in statutes, and carried into effect by judicial decisions. (s. 330, Interpreting Precedents, United Kingdom)

This is

especially so where there has grown up a line of decisions on similar

topics in similar tenor. But the law itself is only evidenced and

declared by, not made by, these decisions. (s. 330)

This doctrine of the independent existence of law presupposes an

appropriate ontology for law, and this was supplied by either a

theory of rationally evident natural law or a theory of law-as-custom,

especially as 'learned custom'. Quite often, indeed, the natural law

and the custom view were presented as mutually supportive and

even logically linked. (s. 330)

What is important in the declaratory approach is that it is essentially

custom that gives the rationale for precedent since this gives us

a reason for doing 'what we have always done' as being evidence for

some deeper truth (the will of God or the best way of going about

things). (s. 331)

Teorie soudcovské tvorby práva

Judicial law-making theories start from a denial of the natural law

premises of the declaratory theory. A basic tenet of legal positivism is

that all law derives from authoritative decision, hence all human law

from authoritative human decision. There is no essence of law beyond

or behind what is decided as law by some competent decision

maker. From this it follows obviously that, if precedents are evidence

of the law, they can be so only because judges are accorded authority

to make law through their decisions. Conversely, the very recognition

of precedent as evidence of the law amounts to recognition of

the power of the courts to make law. (s. 331)

Jeremy Bentham, father of

English legal positivism, was particularly strong in his denunciation

of the declaratory theory as a form of mystification of law, hiding the

power of 'Judge and Co', and insistent on recognition of the fact of

'judicial legislation' through precedent. His followers, from John Austin

through to H.L.A. Hart, though less critical of judges and of the

common law than Bentham, retain firmly the view that precedent is

a 'source of law' in the sense that judicial decisions are constitutive

rather than declaratory of law. (s. 331)

During the nineteenth century, and into the twentieth century, the

positivistic view strongly predominated in the legal thought of the

UK. This had considerable impact on the practice of the courts in

relation to precedent, in two ways. First, there was a tendency to ever

stricter doctrines of binding precedent, and to hierarchically ordered

rankings of binding precedent, on the ground that this recognized the

fact of judicial law making, but kept it to a minimum while establishing

a rational hierarchy of interstitial legislative authority among the

courts. Second, there was a considerable theoretical focus on trying to

find exact ways of identifying the rules created by precedents, hence

much focus on elucidations of the idea of the ratio decidendi. (s. 332)

Determinative Theory

The modern stress (cf. Dworkin, 1978; 1986) is on law as grounded

in principles partly emergent from practice and custom, partly constructed

out of moral or ideological elements that bring together

practice and contemporary values in a coherent order (MacCormick,

1984). Legal rules and judicial rulings on points of law are then to be

understood as 'determinations' (in the Thomistic sense) of background

principles - neither simple deductions from them nor arbitrarily discretionary

decisions about them, but partly discretionary decisions

as to the best way of making the law determinate for a given (type

of) case (Finnis, 1985). From this, the best present day rationale of

precedent would seem to be what we would call a 'determinative

theory', which can well account for the continuing role of judicial

precedent as a 'source of law', but a defeasible one. (s. 332)

Doctrines like the 'determinative theory' which suggest a more holistic

approach to legal systems or, more likely, to particular branches of

law, favour the development of a strong sense of underlying principles

proper to particular fields and branches of law, and the taking of

a coherent view of legal doctrines as congeries of principles, values

('policies') and their determination through decision making which

is truly sensitive to the full particularity of contexts of decision. (s. 334)

Závaznost precedentu

In New York, the formal bindingness, force or other support that a

precedent has may vary significantly. The only part of the opinion

which can be formally binding or have high normative force is the

'holding' or 'holdings'. This is the portion of an opinion in which the

court rules on the issue (or issues) necessary to the decision. (s. 383, Interpreting Precedents, USA)

Some parts of an opinion are not formally binding as precedent.

This is true of the views or opinions of the court which are not

necessary to the resolution of the specific issue before the court. This

language is called 'dicta' and it is generally not binding. As indicated,

dicta are usually defined simply as statements in the opinion

'not necessary' to the court's decision on the issue or issues. (s. 384, Interpreting Precedents, USA)

Odchýlení se od precedentu (overruling)

There are at least three major types of justified overruling of precedent.

The first type occurs in instances when technological

innovations or improvements make the precedent obsolete. Because

of the rapid influx of manufactured products into the market-place

in the early twentieth century and the growing number of individuals

being harmed by these products, the MacPherson opinion,

dispensing with the requirement of privity in a negligence action

against the manufacturer, recognized the transformation of American

society through technological innovation. Or, as C ardozo stated

in MacPherson, 'the things subject to the principles do change', as 'the

needs of life in a developing civilization require' (MacPherson, 217

N.Y. at 391).

A second major type of overruling of precedent occurs when the

change or abandonment of precedent is necessary to bring the common

law into line with growing social or moral enlightenment; that

is, when the substantive values upon which the precedent was based

are no longer tolerable. An example of this second type of justified

overruling can be found in the New York case of Woods v. Lancet, 303

N.Y. 349 (1951). The rule prior to this decision, established by the

Court of Appeals in Drobner v. Peters, 232 N.Y. 220 (1921), had been

that an infant could not recover against a defendent who caused it

prenatal injuries in the ninth month of the mother's pregnancy. The

Court of Appeals in Woods found that the rationale for the prior

decision was no longer supportable and that the court was justified

in overruling Drobner in order to 'adapt and alter [the] decisional law

to produce common-sense justice' (Woods, 303 N.Y. at 355). The Court

of Appeals then went on to sustain the plaintiff's right of action. A

new view of moral rightness may have explained this case, and

perhaps the Boomer case, above, too.

A third type of justified overruling is in those instances where

subsequent experience with a precedent shows that it was

substantively quite erroneous or ill-conceived from the beginning. An

example of the Court of Appeals recognizing original error in a prior

decision and overruling the precedent is People v. Nixon, 2 4 8 N.Y. 182

(1 9 2 8 ). In Nixon, the Court of Appeals rejected settled precedent

which had required a defendant in a criminal case tried without a

jury to make a formal motion to dismiss in order to preserve on

appeal his contention that the evidence was legally insufficient to

warrant a conviction. In its overruling of a line of cases, the Court of

Appeals in Nixon described the unfairness of the precedent: 'It is

right that this court should hesitate to overrule a previous decision,

but when convinced that an artificial rule of practice, created by it, is

erroneous and hampers the administration of justice, it is its duty to

refuse to perpetuate previous error' (Nixon, 2 4 8 N.Y. at 192). (s. 396-397, Interpreting Precedents, USA)

Rozdíly mezi kontinentálním a angloamerickým pojetím

they argue that the presence of stare

decisis in English law and its absence in French law derive paradoxically

from the same purpose - the desire of a central government to

strengthen and consolidate its authority. In England historically the

doctrine of precedent assisted the royal courts in gaining authority

over the decentralized customary courts. Had the royal courts failed

to follow their own decisions, they would have created uncertainty

as to what the 'common law' was and thus undercut the common

law's authority. In France the French kings of the ancien regime sought

to consolidate power over the local law-giving bodies by claiming

exclusive legislative power for themselves. The leaders of the French

Revolution apparently followed the same purpose in forbidding

judges to lay down the law. (See Mackenzie Stuart and Warner, 1981,

p. 276.) (s. 425, Interpreting Precedents, ECJ)

             Tento článek je příliš stručný nebo postrádá důležité informace.
             Pomozte naší wiki tím, že jej vhodně rozšíříte. Nevkládejte však bez oprávnění cizí texty.