Essay/Term paper: Law of precedent

Essay, term paper, research paper:  Politics

Law of Precedent


One of the major considerations on how someone is tried in a court of
law depends upon the previous convictions of similar cases. This law of
precedent (stare decisis) was founded hundreds of years ago as part of our
common law. The literal translation of stare decisis is "that like cases be
decided alike." Precedents in law play a fundamental role in the judicial
processes of Canada. From stealing a loaf of bread ranging to murder in the
first degree, there are precedents for any type of case that has ever occurred
in Canada, and even many cases from Britain (prior to 1949 and the abolishment
of the JCPC). Unfortunately, the law of precedent does have its downfalls.

Despite the fall backs of stare decisis, the law of precedent still holds
true and important in our modern society. Some of the shortcomings of stare
decisis are the following: As time changes, precedents need to change in order
to accommodate society's new values and laws. Furthermore, the introduction of
"social facts" in court cases has clouded over many existing precedents with
many new facts and ideas that render the basics of stare decisis much more
complicated.

One of the more common drawbacks to the law of precedent is that over
time, a law may be found as no longer applicable, or on the other hand, a new
decision may be found in a trial which can also be undesirable. Keep in mind
that the courts are not supposed to create new policies to deal with new
problems, that is the role of the legislature. This drawback is prevalent in
two forms: The first is the ruling of a court case, and the second is the
sentencing or judicial decision of a case.

In order to examine the first form an example is given. A long time ago,
sexual harassment at the work place was virtually unheard of or it was ignored
altogether. The case probably would not even make it to court. Nowadays if a
boss (traditionally a man) simply inquires about an employee's sexual status
(traditionally the woman) is considered sexual harassment, and the boss would be
found guilty of the charge. This is a classic example of the changing views of
society. Sixty plus years ago, women seemingly meant nothing to the world. They
were considered tools, possessions, and frequently were not referred to at all
by the law. However, with the long battle for the realization of woman's rights,
females have become respected by our society and our laws. Unfortunately, sexual
harassment at the workplace is going too far. It used to be a threat of one's
job in return for sexual favors to qualify as quid pro quo harassment. Yet in
today's context, simply inquiring about an employee's sexual status is de emed
as sexual harassment.

There are problems with old laws and precedents that may need to be
rectified. Previous decisions by judges do not necessarily embody the law. Here
is where a judge's duty is to apply the law, not another justice's determination
of it. "The law and the opinion of the judge may not always be one and the
same." For judges, it is important to correct any precedent that is now viewed
as a mistake. Making sure that precedents are kept "in check" is a vital role of
the courts.

The second case of changing precedent is that of court sentencing and
decision making. This part of stare decisis troubles many people along with
myself for a good reason, court cases are getting out of hand! Here offered is
another example. Fifty years ago, a convicted serial killer would have been hung
by the laws of capital punishment. Yet nowadays, the taking of a convicted
killer's life is deemed as cruel and unusual punishment, even if he murdered the
Prime Minister on national television. If that example is too drastic, here is
another, more reasonable example. In the United States, court rulings dealing
with personal injury or damages are becoming out of this world. Here are a
couple of examples: A lady gets 8 million dollars for spilling hot coffee from
McDonalds' on herself; O.J. Simpson is out a total of 33 million dollars for the
wrongful deaths of Nicole Brown-Simpson and Ronald Goldman. These rulings are
ludicrous! If one chooses to say that is the States and not Canada, how about
the Br ian Mulroney's attempt to sue Canada for 55 million dollars due to
slanderous remarks that were allegedly made by his fellow politicians and
Canadian citizens? How much further must society "progress" (and this term is
used very loosely) before a life sentence of 25 years for a convicted killer is
deemed as cruel and unusual? With such continuing changes in the precedents due
to an ever developing society, it will not be long before our court system has
gone too far with its rulings. Yet the only solution that seems likely is to put
a "cap" on sentencing and judicial decisions. We currently do have such "caps"
yet they seem to be stretching ever so consistently.

A recent and very big complication in the law of precedent is the notion
of "social facts." Spawned from the United States, social facts, "which are
general patterns of human behavior," only came into Canada in the 1970's. The
use of social facts in a court case was greatly increased by the enactment of
the Charter of Rights and Freedoms in 1982. A few problems have arisen in the
judicial process and the application stare decisis due to social facts. When
social facts are weighed against historical or adjudicative facts in a court
case, conflicting solutions may occur. This means that when looking
specifically at the historical facts, a judge may use a precedent to guide his
or her ruling, however, once adding social facts to the case (by use of expert
witnesses, statistics, etc.) the decision of that case may no longer be cut and
dry. There may be certain circumstances or extraneous variables that have come
to play a vital role in the decision of a trial. Therefore, the use of a
precedent may be inappropriate. This is a problem because even though social
facts may change the view of a case, stare decisis obliges a court to apply
precedent to a case even though it is wrong. "Whether the present case
resembles the plain case "sufficiently' and in the "relevant' aspects" is what
judges need to decide with the twist of extrinsic evidence. With the addition
of social facts to the judicial system, stare decisis is "no longer an article
of faith."

Before too much criticism is allowed regarding the law of precedent, one
must ask if there is a more feasible solution. As far as I can see, there is not.
There are a myriad of important uses and applications for stare decisis. It
uses "past experience to guide present conduct." It promotes the rule of law,
not men. The law of precedent also minimizes judicial discretion and creativity.
This is a major benefit that the Canadian judicial system has over that of the
American's. As Americans see precedents as only a "cogent principle," the judges
are much more free in their decision making. This can lead to a bias in the
delivering of fair justice to the people. Stare decisis is also an instrument
of stability that assures equality in the law. A vital aspect for civilized
societies is the certainty and continuity of the law.

The law of precedent has managed to stay intact and active despite the
changes and challenges of society over hundreds of years. Yet as there is no
guarantee that what is law today will still be a valid law tomorrow. Despite
this possibility, stare decisis has managed to maintain a firm foothold in our
judicial system. After a brief view of the pros and cons of stare decisis, one
will find that the law of precedents is not perfect, however it is the best
solution to the problem of administering justice fairly in our society. "For a
law with no certainty is no law at all."