Now if the world were simple, a rule in a decided case would be a perfect
prediction for how a court will decide a future case. But the part of the world
inhabited by precedent is not simple. Precedent is certainly a guide to future
cases, but it is not always a perfect predictor of the ratio in a future case
because precedent incorporates a substantial amount of flexibility.
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So, while
ratio is initially approached as determining what judges in the earlier case
actually meant, the real issue is what a later court will say when the rule which
is the ratio is next considered. Certainly in making this prediction as to future
judicial performance past cases are a guide, but they are no more than that.
There
is
a
further
consequence.
Given
the
inherent
uncertainty
of
precedent,
strictly we cannot refer to a rule of common law that is absolutely right or wrong.
Instead
we need to refer to and measure, if at all possible, its predictive validity.
This is its capacity to predict or determine how a future decision will be made on
the same or a similar point of law.
Stare Decisis
Introduction
Faced with a new situation of fact, judges had to formulate a rule, that is, a
ratio, to cover the case. Once a rule has been established in this way, it is
likely to be followed and applied in later cases because of the doctrine of stare
decisis,
375
meaning to stand by what has been decided.
Rules of Stare Decisis
Introduction
Stare decisis operates against a background comprised of the hierarchy of
courts.
376
Under this system a dissatisfied litigant can appeal from one court to
a court that is higher in the hierarchy.
Hierarchy of Courts
In most jurisdictions courts are arranged in a hierarchy so that a litigant who
loses a case at one level in the hierarchy may appeal to a court at the next level.
Typically this hierarchy has three levels -
a court of first instance, an
intermediate appellate court and a final appellate court. These can be set out in
a table showing the levels and some of the names given to these courts in
various jurisdictions:
Court
Names
Final Appellate Court
Supreme Court,
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House of Lords,
378
Privy Council,
379
High
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Chapter 7 Common Law Rules
375
In full this is a maxim stare decisis et non quieta movere. This means to stand
by what has been decided and not to move what has been set down or set in place.
376
Blackshield (1980B)
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