Constitutional Law 2020 - part 2 (a) Flashcards
reading for question
What then is the law of Jersey in relation to the doctrine of precedent? In our judgment there are at least three reasons why the rigours of the English system should be held not to apply here.” Bailhache, Bailiff, in Qatar -v- Al Thani [1999] JLR 118 at page 124
Does the doctrine of stare decisis apply in Jersey?
In the State of Qatar, the strict application of the concept of stare decisis to Jersey law was considered and rejected by the Royal Court. While the court recognised that almost all legal systems acknowledge the persuasive force of judicial precedent, the English doctrine of precedent was perhaps unique in its inflexible application.
What was the first reason given by the Bailiff in respect to the the concept of stare decisis in Jersey?
the original source of Jersey law was Norman customary law - as usage can change customary law, this is logically possible regardless of which level of court made the earlier decision, as it would not be a matter of a lower court declaring a higher court to be wrong, merely finding as a matter of fact that usage has changed.
What was the second reason given by the Bailiff in respect to the the concept of stare decisis in Jersey?
the mass of case law underpinning the English concept of stare decisis did not exist in Jersey, so there was no basis for applying the English concept.
What was the third reason given by the Bailiff in respect to the the concept of stare decisis in Jersey?
the jurisprudence of Jersey has more in common with France, where a court has more freedom to interpret the law in accordance with the contemporary situation of society.
what was the situation in respect to precedent before the decision in the State of Qatar
before the decision in State of Qatar the situation was not as clear as it appeared that some form of precedent might appear in Jersey. Accordingly, a number of principles had been stated about the precedent of certain decisions. The decisions should no longer be considered good law, but they do give an indication as to the weight to be given to the decision of a particular court or tribunal.
What made an impact on the importance of judicial precedent in Jersey
the importance of judicial precedent has increased not only with the availability of law reports, buy also with the creation of the Court of Appeal in 1961.
What did the creation of the Court of Appeal in 1961 mean for judicial precedent?
A hierarchical structure of courts requires deference to be shown by lower courts to the decisions of higher courts (in the case of the Privy Council, when it is sitting as a court of appeal from Jersey)
will decisions made by higher courts be followed slavishly?
A lower court may decide to not follow a decision of a higher court if there had been legislative changes or compelling changes of circumstances in the meantime.
Does it make much of a difference whether there is or is not such a doctrine in Jersey?
The conclusion that Jersey does not apply the concept of stare decisis in the same strict manner as the English doctrine does not mean that it is not applied here in Jersey. Jersey acknowledges the persuasive force of judicial precedent but in the event that there is contradictory Jersey case-law or customary law Jersey courts do not need to follow such a strict rule.
