It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious. The problem is that these two concepts of judicial precedent are seen as working against each other and not in tandem. There is proof, however, that as contrasting as they are on the surface they are actually working together to achieve one common goal. Judicial precedent in its broad definition is the process by which judges follow previously decided cases to aid in their decision providing that the facts are sufficiently similar.
The doctrine of judicial precedent seeks to provide consistency and predictability in law by virtue of the application of the principle of stare decisis which means to stand by the decided. Through the application of this maxim, judicial precedent ensures inferior courts are bound to apply the legal principles which were set down in the decisions made by superior courts. The decision of a judge may fall into two parts, ratio decidendi and obiter dictum.
The ratio decidendi is the reason for the decision and it is the principle of law on which a particular decision is made. When a judge has come to a decision he outlines the facts which he finds has been proved on evidence, he then applies the laws to those facts and arrives at his decision for which he gives a reason; this reason is the ratio decidendi. Therefore it is important to note that, it is not necessarily the decision which is of utmost importance in judicial precedence but the reason for arriving at the decision.
The ratio decinidi is not as clear cut as it sounds though as there are a number of instances where the ruling judge does not explicitly say what the ratio decidendi is and it is sometimes left for a later judge to determine and this is an issue in and of itself as there maybe disagreements as to what the reason actually is. The obiter dictum on the other hand is speculation so to speak. This is where the judge states what his decision might have been if the facts and circumstances had been different.
Obiter dictums are not binding as they do not speak directly to the matter before the court, they do however still prove useful in legal practice as they can be used as persuasive authority. Judicial precedent as a whole is the way in which English law provides and maintains consistency and predictability. This assumption of consistency and predictability through judicial precedent allows the law to exude a sense of certainty, fairness and by extension some amount of flexibility; but the question is, how can something which is consistent and predictable to such a degree that it is considered certain exhibit flexibility?
After all one would think that in order to be consistent and predictable there must be rigidity involved. Before we can delve into the relationship between certainty and flexibility in judicial precedent, each element must be explored individually. Unlike legislation and statue which most times speak to hypothetical situations, judicial precedent is a response to real situation and as such there is a foundation of pragmatism which holds the principle together. As it relates to certainty, the law is established in such a way that it is possible to predict what a decision will be and plan accordingly.
There is a sense of security in this element of judicial precedence because once a legal rule has been established it is binding and cannot changed by a later or lower court, individuals can therefore adjust their behavior with regard to the legal rule. Additionally, like cases are supposed to be treated alike, this in some ways achieve certainty as the ratio decinidi in the previous case will likely be similar also hence there is some certainty in the outcome of similar cases. Although judicial precedent is binding, it is no way absurdly rigid to the extent where it becomes nonsensical.
Through judicial precedent judges are afforded the opportunity avoid precedents; this is where the principle becomes flexible. There are four ways of avoiding precedents, these are distinguishing, overruling, reversing and per incuriam. Distinguishing is the main tool used to avoid precedents. The principle of distinguishing believes that a case based on its own material facts does not necessarily have to follow a precedent case if the judges wanted to avoid a previous inconvenient decision.
This likely when a court holds believes that the facts of the case before are significantly different from those in cited precedents and therefore it will not find itself bound to follow that precedent. Distinguishing is done at the discretion of the judge and some judges may be more inclined to distinguish while others will stick to the precedent no matter how illogical it may seem. Lord Justice Buckley in Olympia Oil v Produce Brokers stated: “I am unable to adduce any reason to show why that decision which I am about pronounce is right… but I am bound by authority which, of course it is my right to follow.
Judges can also overrule a decision. Overruling can only occur in higher courts or as one move up the court hierarchy and may occur in two instances; where the higher court believes the lower court did not apply the law properly and where the previous ratio decidendi is no longer desirable. Another instance in which a judge can avoid precedents is through reversing; the concept of reversing is very simple, it is essentially where the judge of a higher court overturns on appeal by the ruling of a lower court and substitutes it with its own ruling.
Higher courts can also overrule rulings in the lower courts which are deemed careless and avoidable, this called ‘per incuriam’. In Morelle v Wakeling Lord Evershed MR stated “the only case in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned. The rule, however, does not apply to the House of Lords as the Court of Appeal cannot overrule decision made in that court.
In Cassel v Broome  Lord Denning MR held that the decision in Rookes v Barnard  to be per inuriam as it ignored previous House of Lords’ decisions. He received harsh criticism for this position by the House of Lords who believed that the Court of Appeal ‘really only meant that it did not agree’ with the earler decision. Lord Hailsham of the House of Lords responded, “Even if this is not so, it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords.
The aforementioned mechanisms are used by judges to avoid precedents and it gives rise to the question of whether flexibility leads to uncertainty; after all judges do have the ability to choose which authority they wish to follow. In truth, these mechanisms do not do much to cast any ambiguity on the principle of certainty in judicial precedence. One must pay keen attention to the fact that these mechanisms of avoiding precedence is only available to the higher courts and accessed through appeal, the high courts do not interfere with the decisions of lower courts unless it is brought before them.
One must also take note of the circumstance in which these mechanism are utilized, the concept of avoiding precedents is mostly used in situations where the law as not been properly applied and the outcome of a case is proved to be illogical. Therefore, judges in these instances are concerned with the law and ensuring that it is properly applied, this in truth and in fact sums of the role of the legal system. In the end a balance must be struck; just as it is with any oncept, especially those which seek to govern the way in which people live and conduct their everyday lives. It would be foolish to expect people to live by principles which are too stringent just as it would be foolish to expect order in a system which is too flexible. Certainty and flexibility may indeed be conflicting concepts in judicial precedence but they do seek to achieve the same goal; a legal principle which offers fairness without sacrificing the certainty which lies within law.