If a group of cases involves the same point the

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Unformatted text preview: ces should be included in any discussion regarding changes in policies of the courts when awarding damages. Courts, though, traditionally look more to past cases for guidance through the doctrine of precedent, than to extraneous and sometimes ill-defined social circumstances. Predictability a nd Stare Decisis The policy of predictability manifested itself historically through the doctrine of stare decisis. Cardozo touched on this doctrine in practical language: I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly be some consideration of history or custom or policy or justice. Lacking such a reason, I m ust be logical, just as I must be impartial, and upon like grounds. It will not do to decide the same question one w a y between one set of litigants and the opposite way between another. If a group of cases involves the same point, the parties expect the same decision. It w ould be a gross injustice to decide alternate cases on opposite principles. If a case was decided against m e yesterday when I was defendant, I shall look for the same judgment today if I a m plaintiff. T o decide differently would raise a feeling of resentment and wrong in m y breast; it w ould be an infringement, material and moral, o f m y rights.60 The court must go through not only an exercise of discretion with respect to both the facts of a case and the search for the applicable rule of disposition, but also must balan the underlying policy of predictability and "fidelity to the rule of law"61 through the doctrine of stare decisis. This doctrine is the central mechanism by which the rules are generated and propagated. It is, at its very heart, the core of the common law itself, for 60 Cardozo, B., 1921, The Nature of the Judicial Process, 1970 edition, Yale University Press, p. 21. Ha & Anor v New South Wales & Anor S45/1996 H igh Court of Australia, Kirby J. (24 M a y 1996); Trade Practices Commission v Abbco Ice Works Pty. Ltd. & Others (1994) 123 A.L.R. 503; 14 A.C.S.R.T 359;(1994)F.C.R.96. 61 289 "[t]he c o m m o n law ... has been developed by the method of building upon the precedents provided by previous decisions.62 It is well-known legal doctrine that only the ratio decidendi of a case is binding upon later courts. As the legal process reduces questions in legal disputes into a form which reflects what is thought to be the legal principle at issue between the parties, the proce of applying past rules taken from other decisions is more uniform in its application than trying to fit facts into a rule directly, or finding a rule which covers the facts of a no case. What exactly comprises the ratio of a case can be debatable. This is true especially if one considers that many judgments are lengthy, legally esoteric in nature, and reflect the arguments given by the parties themselves which, of course, do not always appear in the case reports. Judges, in addition, do not always have habits of accurately summing all the arguments in judgments. This is acutely so in the older judgments, but increasingly in High Court and Appeal Court judgments the underlying arguments of opposing counsel appear to be canvassed and summarised at the beginning of reported cases . In addition, the language used to 'distinguish' a prior ruling may only be a tool for expressing an intuitive sentiment regarding where justice may lie in an instant case, where a member of the judiciary perceives more than can be logically justified. Judges, in short, have discretion within a framework to change the way a past case will influence both the instant case and future cases. Case rationes can be used with a wide latitude, distinguished on the facts of the previous case, commented upon in obiter dicta which may affect later consideration, and in the 62 Birchett J. in Trade Practices Commission v Abbco Ice Works (1994) 52 F.C.R. 96 p. 13. 290 e nd be overturned b y a later, or higher court. T h e courts, however, still uphold the doctrine itself. Stare decisis can therefore be said to be an introduced bias of legal rulemaking within both the perceived 'justice' paradigm and the changing social milieu. Stone took the position that: [Precedents should be seen as illustrating "a probably just result in another context for comparison with the present", so that their use thus remains a "a rational means towards judgment", rather than as containing legal propositions of general force independent of their . former context, to be used as premises from which to deduce future legal rules. . . the structure of precedent law constantly produces and reproduces both new rules, and new areas for choicemaking. . . This notion both creates leeway for the play of contemporary judicial insight and . wisdom, and also keeps judicial attention close to the contexts of earlier cases, and to the views of log...
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This note was uploaded on 09/03/2012 for the course LAW 1501 taught by Professor Garva during the Three '12 term at University of Adelaide.

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