The Rule of Precedent in the Criminal Courts
| Published date | 01 July 1941 |
| DOI | 10.1177/002201834100500307 |
| Date | 01 July 1941 |
| Subject Matter | Article |
The
Rule
of
Precedent
in
the
Criminal
Courts
OVER
a long stretch of time much has been written about
that characteristic principle of the English case-law
system, the obligation imposed on judges to follow precedents.
Some have criticized it, more have praised it,
but
the detailed
application of the principle has not had the special attention
which its practical importance deserves.
It
is now generally
agreed that the dictatorial regime of case-law began only in
the nineteenth century with the more rigid hierarchy of
courts. As the criminal law is administered in a set of courts
which have little concurrent civil jurisdiction it will be useful
to examine the exact standing of precedents in those courts.
As a generalization, it is probably
true
to say that the
English case-law system is not so rigid as it is commonly
supposed to be.
There
is a tendency to assume that because
acourt holds itself bound to follow a series or course of
decisions in the same court, it
must
therefore, as a matter
of obligation, follow a single ruling of the same court.' But
it does not follow that the court is debarred in this way from
deciding in accordance with what it takes to be the right
view of the law.
It
is the duty owed to the single instance,
as distinct from a line of cases, which is the uncertain factor.
Is not over-much confidence placed in the " test case " in
criminal law as if it were necessarily the end of all
doubts?
It
is, of course, always of some value to test a questionable
1
The
development
of
the
distinction
between
the
single
precedent
and
the
series
in
the
Chancery
courts
is
traced
in
the
present
writer's
article, ..
Precedent
in
Equity,"
Law
Quarterly Review,
April,
1941.
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