Theories of judicial decision making and the doctrine of precedent

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This article is a topic within the subject Introducing Law & Justice.


Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 328-359 (Chapter 13); Extract from Dugan in pp. 178-182.

Supplementary Materials (Judicial Decision Making).


This section follows on from the previous section, Doctrine of Precedent. It deals with how precedent influences legal decision making and how precedent changes over time.

Precedent and change

[1] As time passes, laws are meant to change and adapt to the circumstances of modern society. However, it can be difficult to make these changes to the law in a system which follows the Doctrine of Precedent, since judges are bound to adhere to previous decisions. Judges therefore have to tread a fine line between maintaining consistency, but also adapting to new circumstances.

The issue of when it is possible to make changes to the law and also maintain consistency is considered in Dorset Yacht Co Ltd v Home Office:[2]

Theories about precedent

[3] This section deals with some of the theories underlying the approaches to precedent and the nature of law.

  • Natural Law
    • Belief in a system of law common to all people, derived from the supreme force in the universe, or God.
    • Recognises a relationship between law and morality.
    • If it is law, it must be right – law has an underlying moral nature.
  • Positivism
    • This is seemingly the polar opposite to natural law – it is a belief in a system created by men, recognisable by how it was created, as opposed to whether it is right or wrong.
  • Legal Formalism
    • This arose out of positivism. It essentially draws on the doctrine of precedent in an objective view of the law.
    • Sir Anthony Mason: “If the principles of law are deducible from past precedents, there is no place for the personal predilections and values of the individual judge, and there is less scope for controversy about the law that the judge is to apply”.
  • Declatory Theory
    • This is connected to legal formalism. It essentially states that judges use cases to investigate and ‘find’ the law and then declare it as it has always been.
    • Sir William Blackstone: “there is in fact no such thing as judge-made law, for the judges do not make the law…they…apply existing law to circumstances…not previously…authoritative”.
  • Command Theory
    • Distinguishes a law form other desires by the fact that it is enforceable by some sanction or punishment.
    • Advocated by John Austin who defined law as “set by a sovereign person…to a member of that political society wherein that person or body is sovereign or supreme”.
  • Legal Realism
    • This introduced the idea of the ratio decidendi to determine cases to categorise together and thus decide how the law is to apply to such a category.
    • Looked at the results of cases and suggested that the theories of the doctrine of precedent and the principles of law might have little to do with the outcomes of cases.
      • Oliver Wendell Holmes Jr: “the life of the law has not been logic, it has been experience”.

Using legal argument

[4] Legal reasoning is essential to the law as it prevents an arbitrary system, since judges’ decisions are scrutinised to make sure that the decision is valid under the law.

The case given in the textbook is Dugan v Mirror Newspapers [5]. This is an excellent example of how judgments are used to clarify and validate the decision of the judge. These decisions should be clear, concise and structured.

James Boyle - First Year Mystification and Legal Argument

[6] In this article, Boyle explains two main kinds of arguments: precedential and non-precedential, which are to be “weaved together” for an effective argument.

  • Precedential - rule-based and interpretive arguments:
    • Purposive vs. Formalist interpretation:
      • Purposive: “Imagine” the purpose which lies behind the rule and define the words in the light of this purpose.
      • Formalist: Explain the meaning of the word out of context and without considering the purpose behind the rule. Apply the word to the fact situation.
    • Broad vs. Narrow rule:
      • Narrow: Tie the rule to the facts to the particular case so that the facts were marginally different
      • Broad: Take each of the phenomena in the case and make them as “abstract” as you can
    • Manipulation of precedent: Combine methods with a factual and legal recategorization of what has happened in the case at hand, so as to make other cases seem more or less relevant.
  • Non-precedential:
    • Policy:
      • Firm rule: Court adopts rule X, with firm standard that can be easily administered by judges. Citizens order their affairs with sure knowledge of the Law.
      • Flexible standard: Rule X is harsh, and unfair in this case, rule cannot adapt in future cases. Standard Y will permit each case to be taken on its own facts.
  • Arguments about Institutional Competence:
    • Competent: Courts are bodies that society has set up to deal with complex factual issues, to be responsive to changing circumstances and yet be objects.
    • Incompetent: Dealing as it does with issues of change, it must be left to the legislature, a body which reflects changing public opinion, which can bring an outside expertise and which is used to dealing with complex factual issues such as this.
  • Moral Arguments:
    • Morality as a form: A contract is a contract, people should keep their bargains
      • As Substance: right to freedom of action vs. making moral decisions on the basis of a right to security
    • As Freedom: Should be allowed to refrain from certain actions, and not require us to act.
      • As Security: people should have secure knowledge
  • Deterrence or social utility arguments: moral and economic arguments
    • Flexibility: Allow entities to respond to changing conditions, and act freely to encourage competition
      • Stability: Uncertainty in the market will limit societal gains.
    • Formal deterrence: Assuming rationality in the market, the realities of situations will be considered
    • Economic argument: Generate efficient solutions, assuming the absence of transaction costs.


Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, p. 334
  2. [1970] AC 1004
  3. Textbook, p. 337-342
  4. Textbook, pp. 343-357
  5. [1978] HCA 54
  6. James Boyle, 'Anatomy of a Torts Class' (1985) 34 American University Law Review 1003 at 1051 - 63, Appendix: First Year Mystification and Legal Argument: How to Avoid the Former and Master the Latter
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