Thursday, December 31, 2009

My Constitution, Section 23

Section 23 - Principle of precedent

23(1) All courts, except the High Court, shall follow principle established by superior courts.
A necessary part of rule of law is consistency in judgement. Here, all the courts inferior to some higher court must be in consistency with the principles laid down by that higher court so that there is consistency throughout the whole of the jurisdiction of that higher court. By itself it is not enough for justice, but consistency is a necessary element because both truth and justice are unities, both in terms of high moral principle and in application to the culture of the people within the jurisdiction of a given court system, where the content of that culture will affect how the Reasonable Person standard is to be applied within that jurisdiction.

Another reason for the rule is that if it weren’t in place then there’d be venue-shopping for the ‘right’ court. Apart from this clogging up dockets and opening the door for rule-of-men by the particular judges shopped for, it would also lead to constant referrals of cases to the superior court, which court would be obliged to restate the same conclusion over and over, wasting enormous amounts of resources and leading to delays in justice in the process.

23(2) All courts shall open themselves to persuasion into confirming principle established by courts of equal or inferior authority, and also of foreign jurisdiction of just repute, and shall establish that principle in themselves unless the Reasonable Person would hold beyond reasonable doubt that justice requires that another principle should be established.
Consistency is not an end in itself, but it should not be departed from without reasonable grounds for doing so. Those reasonable grounds must only be a valid opinion that a previous finding is mistaken or inapplicable to the jurisdiction in question.

Additionally, the ability to depart from findings in other equal or lesser courts is part of the rule of law by confirming that state of equality or inferiority, and so keeping the chain of authority intact and making it easier for people to formulate plans of action in relation to pursuit of legal matters. The foreign courts, even the highest court of a foreign country, are held as inferior for the obvious reason that the foreign law isn’t directly applicable to locals, and is to be treated as nothing more than a source of thought and argument.


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