Law is a system of rules that are created and enforced through social or governmental institutions to
regulate behavior. Law is a system that regulates and ensures that individuals or a community adhere
to the will of the state. Jowitt’s Dictionary of English Law states that law is a rule that men must obey
to make their conduct acceptable by the society, a command for obedience and punishments or
sanctions are given when the laws are broken.
In Malaysia, the law is main classified to written and unwritten sources. There are four major
components of written laws in Malaysia: which is Federal Constitution, State Constitution, Legislation
and Statutes and Subsidiary Legislation. For Unwritten Laws, there are three basic components which
is English Law, Judicial decisions and customers. Judicial precedent is the source of law. Past
judgments provide judges with legal references in future cases. Judicial precedent (Stare decisis)
means that in the common law, the precedent as a precedent is legally binding on the latter case, and
the court must make the same judgment when facing the same problem in the future. Following the
precedent is the basis for the formation of case law. According to the hierarchy of the Malaysian court
system, the court also has a distinction between superiors and subordinates. The judgment of the
High Court is binding on the case of a lower court, but the High Court can overturn the precedent of
the lower court. In addition, if the objective conditions that give rise to a case precedent have changed,
making the precedent unreasonable, the court can change or overturn the precedent.
In the case of Donoghue v. Stevenson, it’s about plaintiff. Mrs. Donoghue and a friend went to a coffee
shop. Her friend bought her a ginger beer. After drinking most of the ginger beer, she found a rotten
snail in the bottle. After that, Mrs. Donoghue was sick. So, she decided to sue the beer producer. On
that time, the usual remedy for damage caused by a defective product would be an action in contract.
However, Mrs. Donoghue has no contract with the coffee brewer’s ginger brewer. The one who have
contract with the café owner is Mrs. Donoghue’s friend. This because the ginger beer is bought by
her friend, not by Mrs. Donoghue. Although Mrs. Donoghue’s friend has contract with the owner of
cafe, but her friend still cannot sue the boss because her friend didn’t hurt from the ginger beer.
Because of the ginger beer is not belong to dangerous product, and the manufacturer had not
fraudulently misrepresented it, so this case is not belonging to established product liability. The House
of Lords had state that the manufacturer of ginger beer owed a duty of take care to the Mrs.
Donoghue. The manufacturer of ginger beer must have duty of care to the end customer of its
products. In this case, the manufacture of ginger beer had breached the duty of care. Therefore,
Mrs. Donoghue is entitled to compensation for damages. This case is binding on the lower court
because this was a unique case it was decided to first establish.
After the case above, there is another case which Grant v Australian Knitting Mills Ltd. This case is
closely related to the Donoghue v Stevenson case. Here, in 2010, Mr. Justice Peter, a high court judge,
alone decided that the case had important facts like those ruled by the appeals court in 2009.Based
on the explanation of judicial precedent and the interpretation of cases, he must follow the decision
of the court of appeal.
Advantages of Judicial Precedent
This is where like cases are decided on a like basis and judges cannot depart from judging as they
like, and this would increase consistency throughout the application of the law in the country. In the
case of Knuller v DPP 1973 AC 435 was accused of being a director of a company that regularly
publishes magazines with a page dedicated to promoting homosexual conduct. As a result, the
company is believed to have posted information encouraging men to meet up and engage in
homosexual ACTS, and the defendants were convicted of conspiring to discredit public morals. The
defendant has appealed against the charge of conspiracy to deface public morality, a question about
whether there was a conspiracy to undermine the public morality recognized by British law and
whether he could be found guilty of such a crime. The defendant’s appeal was rejected, and the
conviction upheld. The law does recognize a conspiracy to criminalize public moral corruption
because it was created by Shaw v DPP and it should be followed. This case established the court’s
responsibility to protect the morals of society and to enforce its own decisions. Lord Reid commented
that he did not agree with the decision of Shaw v DPP, which he disputed, but he did not want to
reconsider. While judgments are not always binding on other courts, the law must have certainty. The
consistency of judicial precedent is also reflected in the case of Grant v Australian Knitting Mills Ltd.
In this case, the judge followed the judgment of Donoghue v. Stevenson.
LawTeacher. November 2013. Knuller v DPP – 1973. online. Available from:
https://www.lawteacher.net/cases/knuller-v-dpp.php?vref=1 Accessed 21 October 2018.
If the judgment is consistent, then the lawyer and client can accurately predict the outcome of the
decision and judgment and know the opportunity to win the case. Cases from federal courts will have
more power to allow lawyers to predict the likelihood of a verdict. For example, in the case R v R
following R v Caldwell. The respondent did some work for the owner of a hotel. As a result, he had a
fight with the boss, was drunk, and set fire to the hotel in retaliation. The fire was discovered and
extinguished before it caused serious damage. At the time, 10 guests in the hotel were not injured.
The defendant was charged with two arson offences under sections 1(1) and (2)a of the Criminal
Damage Act of 1971. In his trial, he admitted to deliberately destroy or destroy other people’s
property, with 1 (1), but more serious accusations of not pleading guilty 1 (2) and intention to destroy
property, life-threatening or reckless life will be endangered. He claimed that he was drunk at the
time and never thought that he would endanger the lives of people in the hotel. The trial judge
instructed the jury that drunkenness was not a defense of the allegation of article 1 (2) and that he
was found guilty. In the appeal, the Court of Appeal allowed an appeal on the grounds that the life-
threatening intentions or reckless psychological factors referred to in Article 1(2)(b) were specific
intentions beyond the criminal act and therefore must be established as a separate component of the
crime, Drunk can be a good defense.
LawTeacher. November 2013. R v Caldwell – Arson Case – Free Case Law Database. online. Available
from: https://www.lawteacher.net/cases/r-v-caldwell.php?vref=1 Accessed 21 October 2018.
Case laws save time for the judiciary so that a quicker and more efficient judgment could be given
since there are ready precedents that could be followed. In turn, this would also save litigation fees,
as time taken for judges to reach decisions is significantly shorter.
Disadvantages of judicial precedent
Difficulty in determining the ratio decidendi of the case
Leathem, a butcher, had employees which did not belong to the Belfast Butchers’ Association (BBA).
after some difficulties, he asked for his employees to enter the BBA. Quinn, who is the treasurer of
BBA, put pressure on a customer not to buy Leathem’s meat and called out one of his own employees.
When the judge instructed them to decide whether the main motives of Quinn and his adjutant
harmed the interests of Leathem, the jury found a malicious conspiracy between Quinn and other
BBA officials. The Irish Court of Appeal later confirmed their views. Quinn filed an appeal by himself.
He believes that it is necessary to show violations of legal rights – regardless of motivation and
whether there is collusion, such behavior is feasible. In other words, he claims that an act that is not
operational in itself will not be feasible due to the existence of malicious motives. After dismissing
Quinn’s appeal, the court held that his mistakes and malicious incitement to Leathem’s own
employees and clients to stop buying his/her work conspiracy were feasible when proof of damage
was obtained. Although people can legally come together (even if this may harm the interests of
others), it is illegal if the party is only for malicious purposes that harm others. Any violation of a
person’s legal rights (whether contract, infringement or otherwise) is intentionally committed and
does not provide any explanation/reason for action can be prosecuted in the infringement
LawTeacher. November 2013. Quinn v Leathem – 1901. online. Available from:
https://www.lawteacher.net/cases/quinn-v-leathem.php?vref=1 Accessed 21 October 2018.
Techniques of distinguishing previous precedents
A judge who is disinclined to follow a binding precedent may "distinguish" it by finding some
significant differences in the facts of the earlier case and adopting a narrow version of the ratio. He
can then say that the ratio of the earlier case does not apply to the case now before him.
In the case R v Wilson 1996 2 Cr. App. R. 241.According to s 47 of the Offences Against the Person
Act 1861, Alan Wilson was charged for assault. He branded his initials into his wife’s buttocks with
a hot knife. The first issue was whether R v Brown (1993) 97 Cr. App. R. 44, is an authority for the
proposition that consent is not a defense to assault occasioning actual bodily harm to a person,
under s 47 of the Act. In addition, criminal investigations or convictions are required when a couple
takes a wishful act in the privacy of their home. If the activities agreed by the parties are carried out
in the privacy of the individual’s home and the nature is not serious or extreme, then the consent
defense of article 47 of the act is valid and is not an appropriate matter for criminal investigation. The
court distinguished the case of R v Brown holding that the engagement of the defendants in
sadomasochism which led to the decision to convict the defendant under s 47 of the Act was extreme,
with a serious risk of injury occurred. there was no comparison between Wilson’ action and facts
presented in R v Brown and there was no aggressive intent on the part of Wilson. Others argue that
privacy consultations between husbands and wives in their own homes are not a matter of criminal
investigation or conviction. Consent is therefore an effective defense of article 47. Appeals are allowed,
and convictions are dropped.
LawTeacher. November 2013. R v Wilson – 1996. online. Available from:
https://www.lawteacher.net/cases/r-v-wilson.php?vref=1 Accessed 22 October 2018.
Overthrowing is a way to avoid precedents
The superior court dismissed the decision of the lower court in the previous case, such as the Supreme
Court dismissing the decision of the Court of Appeal in the previous case. In the case Davis v Johnson
1979 AC 264, HL. An unmarried mother lives with her father’s father, who are co-tenants. The man
often beats women and takes violent acts. And the man threatened to kill her with a screwdriver.
Eventually the woman fled the apartment with her children according to the Domestic Violence and
Matrimonial Proceedings Act 1976. She applied to the county court to return to the apartment and
excluded the man. Section 1(1) of the 1976 Act County Court has the power to send a party outside
of ‘marital residence’. The question is whether the 1976 Act can explain why public tenants can be
sent outside the apartment and whether its protection is to unmarried cohabitants. The House of
Lords believes that the validity of the 1976 Act does not allow the county court to issue an injunction.
A co-tenant cannot legally exclude another co-tenant from the established power of the property
they jointly own. The court will be able to order someone by an injunction (that may be permanent
or temporary) in accordance with the 1976 Act. Second, excluding the House of Commons debate as
a statutory building aid, the court maintains a free interpretation of the law and believes it gives the
right to exclude violent people from their homes, whether married or unmarried.