A STUDY OF THE THEORY OF APPRAISAL FOR SELECTION By ...

doctrine of stare decisis.3 The hierarchical system of the
common law tradition uses historical precedents to draw
conclusions and pass judgements in the present. Such a practice
assumes an important link between past and present that exists
within the conservative tradition of the law, in which the courts
attempt to provide stability to society through time. In this
manner, a legal perspective has the dual function of tempering
judicial judgeMent with the experience of the past, and of
governing the conduct of society from the perspective of the
present.
Judicial judgements are rarely based on certainty; rather,
they are circumscribed by natural and logical limitations. The
legal process attempts to identify the truth of a contentious
issue in an imperfect setting. The court examines "the
recollections of untrained observers, often emotionally affected
by the events they are being asked to describe."4 To counteract
these natural limitations, the courts rely on cross-examination,
3 Black's Law Dictionary, 6th ed., s.v. "Stare decisis."
The concept of precedents is based on the doctrine of stare
decisis, which is grounded on the theory that security and
certainty require that accepted and established legal principles,
under which rights may accrue, be recognized and followed. When
a point of law has been settled by decision, it forms a precedent
which cannot ordinarily be departed from.^In unusual
circumstances, a precedent can be set aside, when it is necessary
to vindicate plain, obvious principles of law and remedy a
continued injustice.^Within Canadian federal and provincial
jurisdictions, lower courts must abide by the judgements of
higher courts and have a discretionary power of using precedents
of collateral courts. All are bound by decisions of the Supreme
Court.
4 Eggleston, Proof, 6.
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