united-kingdom australia common-law precedent
How can a court avoid creating precedent?
<p>There are a number of ways in which a judge may <em>avoid following</em> precedent &ndash; overturning or distinguishing a previous ruling, for instance.</p>

<p>However, is there any way for a court (particularly a <em>superior</em> court) to avoid creating a binding precedent, particularly in cases where it may not be desirable to do so?</p>

<p>For instance, if judges were required to rule in a certain manner due to (perhaps outdated) legislation, but they did not want their decision to be binding on subordinate courts, perhaps because statutes prevented them from ruling in favour some case where marriage equality rights would be upheld, but they did not wish to set that precedent.</p>

<p>While it is true that judgments based on statutes will be binding only while the relevant parts of that statute is in force, I suppose my question deals with the scenario where judges <em>would prefer</em> to rule in a certain way, however are unable to do so because of statutes that haven't been amended to reflect changing community values, and they do not want to set a precedent in the meantime.</p>

<p>It is the lower courts' interpretation of a senior court's judgment&mdash;specifically the <em>ratio</em>&mdash;that determines what is the precedent.  If a court doesn't want its opinion to bind lower courts, it can be clear in its judgment that this is not what was intended.  For example, a court could say that</p>

<blockquote>
  <p>this judgment turns on the particular facts of this case, and should be interpreted narrowly by lower courts.</p>
</blockquote>

<p>Alternatively, a previous precedent could be narrowed by a later judgment of a senior court if it was later felt that the <em>ratio</em> was being applied too widely.</p>

<p>(I have read examples of the explicitly narrow <em>ratio</em>, but haven't been able to find any today)</p>

<p>There are a few ways to look at this, from a US perspective (in case it's of any comparative value): </p>

<p>First, in many court systems not all decisions are published; and non-published decisions are not citable authority. This was especially common in the days when research was primarily done with books, as a matter of practical necessity in controlling size and expense, but it's still used by many US state courts to filter which decisions become precedent. However, the higher up you get in the court system, the more likely it is that everything is published and citable. And with the dominance of computerized research, there's a trend towards loosening restrictions on the use of non-published cases.  </p>

<p>Second, a decision may use signaling language that tries to limit the usability of the holding as precedent. This may be as plain as an explicit statement that the holding is very fact-sensitive, or has been forged to deal with a bizarre edge-case (in so many words), and so should be narrowly construed. </p>

<p>Finally, there may be splits in high court decisions with multiple concurrences and dissents that make it difficult to discern precisely what the court held for purposes of precedent.  <em>Asahi Metal Industry vs. Superior Court</em> is a law school civil procedure case that is famously miserable for this reason. Presumably justices know they weaken the authority of the court's official opinion when they do this. </p>

<blockquote>
  <p>if judges were required to rule in a certain manner due to (perhaps
  outdated) legislation, but they did not want their decision to be
  binding on subordinate courts</p>
</blockquote>

<p>The job of the judiciary is <em>jus dire</em>, not <em>jus dare</em>. A court may make a comment to express -rather as obiter dictum- its disagreement with legislation. For instance, the reviewing court can (and sometimes does) make statements such as "<em>we reluctantly affirm [the appealed ruling]</em>". Likewise, one or more members of the panel may release a concurring opinion to the effect of <em>concurring as to the outcome</em>, yet stating their criticism of the law or facts. See <a href="https://www.leagle.com/decision/inkyco20170728321" rel="nofollow noreferrer">Dermody v. Presbyterian Church (U.S.A.), 530 S.W.3d 467 (2017)</a> (Combs, J., concurring). However, the judiciary is not supposed to invade (whether subtly or openly) the province of the legislator. </p>

<p>A court acts wrongfully when it suppresses statutory law (or when it crafts some work-around of legal precedent), regardless of making the new decision "legally binding".</p>
