Sources of Law
English law comes into existence from eight (8) different sources, which vary in importance but may be categorised as:
Common Law
Acts of Parliament
Statutory Interpretation
Delegated Legislation
European Law
Custom
Equity
Treaties
Common Law
Common law, also known as case law, has long and interesting history. Rivlin regards the common law as the foundations for his ‘invisible palace’ that has been “built up, added to and altered to [improve] the quality of our laws”.
History of Common/ Case Law
William the Conqueror gained the English throne in 1066 he established a central government and started to standardize the law, which was based on different systems of law in different parts of the country – Wessex law in the south and west, Mercian law in the midlands and Dane law in the north.
King’s representatives were sent to adjudicate in accordance with the local law in these areas and on their return back to Westminster they were able to discuss and compare the different legal customs and form from them a consistent body of rules.
By 1250 the whole of the country was ruled by a uniform ‘common law’
During this process of forming a body of legal rules the important legal principle of stare rationibus decidendis – ‘let the decision stand’ was originated. The law became more predictable as the principle of stare decisis meant that when a question of law became to be decided, the decision would form a rule to be followed in all similar cases.
The principle of stare decisis was the basis for the development of hierarchy of precedent and the hierarchy of the current court structure, as this principle states that a judge must follow the decisions of the higher courts.
The doctrine of binding precedent is a fundamental part of the law.
Judicial Precedent/Stare decisis
The doctrine of judicial precedent ‘creates the expectation that save for the intervention of the legislature, the law will remain as it is state to be in the precedent’
The doctrine of judicial precedent also known as stare decisis (‘let decided things stand’), or binding precedent, is of fundamental importance within the English legal system. Established through the centuries, it states that the English courts are obliged to follow previous decisions within certain limits.
The doctrine of precedent declares that cases must be decided the same way when the material facts are the same. Not every case forms a precedent, and it is intrinsically linked to the court hierarchy.
In order to establish the precedent of the case, it is necessary to analyse what is said by the judges of case and how the conclusion are reached. The statements made by the judges can be divided into two to types:
Ratio Decidendi
The rule of law upon which the decision is based on is called the ratio decidendi (‘the reason for decision’)
The ratio decidendi is not ‘announced’ in the judgement but must be derived from the case
Obita Dicta
All the other parts of the judgement which do not form part of the ratio decidendi are called ‘obiter dicta’ – ‘things said by the way’, which often are discussions of hypothetical situations
Distinguishing between the ratio decidendi and the Obita Dicta
It is often difficult to distinguish between the two types of legal statement, and can be further complicated when there is more than one judge giving a judgement.
The application of Judicial Precedent within the Court Hierarchy
The European Court of Justice
This court deals with interpretation of the EU treaties, validity of acts of Community institutions and interpretation of the statutes of Council bodies
Its decisions are binding on all English courts by reason of the European Communities Act 1972
It does not seem to be bound by its own decisions
European Court of Human Rights
Britain is a party to the European Convention on Human Rights, enacted by the Human Rights Act 1998 which came into force on October 2nd , 2000
Courts in the United Kingdom must take into account the Strasbourg jurisprudence to interpret legislation in accordance with the Convention
Any person who claims to be aggrieved by a violation of the provisions of this convention, being unsatisfied with the determinations of the domestic courts may complain to the European Court of Human Rights
If the court concludes affirmative decision, the British Government must under international law amend the its law or practice accordingly
House of Lords
The head of the hierarchy of English Courts
Deals only with appeals (mainly from the Court of Appeal or by ‘leapfrog’ from the High Court) – both civil and criminal
Hears around 100 cases a year
Binds all other English courts but not itself
Used to bind itself:
London Tramways v London County Council [1898] AC 375 at 380:
“Of course I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgement was erroneous; but what is that occasional interference with what is perhaps abstract justice, as compared with the inconvenience – the disastrous inconvenience – of having each question subject to being reargued and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth and in fact there would be no real final court of appeal. My lords, ‘interest rei publicae’ is that there should be ‘finis litium’ sometime and there can be no ‘finis litium’ if it were possible to suggest in each case that it might be regarded because it is ‘not an ordinary case’ whatever that may mean.” - Lord Halsbury
This was changed on July 26th, 1966:
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individual can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House.”
The above was issued to the press with an explanatory note:
“Since the House of Lords decided the English case of London Street Tramways v London County Council in 1898, the House have considered themselves bound to follow their own decisions, except where a decision has been given per incuriam in disregard of a statutory provision or another decision binding on them. The statement made is one of great importance, although it should not be supposed that there will frequently be cases in which the House thinks it right not to follow their own precedent. An example of a case in which the House might think it right to depart from a precedent is where they consider that the earlier decision was influenced by the existence of conditions which no longer prevail, and that in modern conditions the law ought to be different.
One consequence of this change is of major importance. The relaxation of the rule of judicial precedent will enable the House of Lords to pay greater attention to judicial decisions reached in the superior courts of the Commonwealth, where they differ from earlier decisions of the House of Lords. That could be of great help in the development of our own law. The superior courts of many other countries are not rigidly bound by their own decisions and the change in the practice of the House of Lords will bring us more into line with them.”
Very rarely it overrules its earlier decisions
English law comes into existence from eight (8) different sources, which vary in importance but may be categorised as:
Common Law
Acts of Parliament
Statutory Interpretation
Delegated Legislation
European Law
Custom
Equity
Treaties
Common Law
Common law, also known as case law, has long and interesting history. Rivlin regards the common law as the foundations for his ‘invisible palace’ that has been “built up, added to and altered to [improve] the quality of our laws”.
History of Common/ Case Law
William the Conqueror gained the English throne in 1066 he established a central government and started to standardize the law, which was based on different systems of law in different parts of the country – Wessex law in the south and west, Mercian law in the midlands and Dane law in the north.
King’s representatives were sent to adjudicate in accordance with the local law in these areas and on their return back to Westminster they were able to discuss and compare the different legal customs and form from them a consistent body of rules.
By 1250 the whole of the country was ruled by a uniform ‘common law’
During this process of forming a body of legal rules the important legal principle of stare rationibus decidendis – ‘let the decision stand’ was originated. The law became more predictable as the principle of stare decisis meant that when a question of law became to be decided, the decision would form a rule to be followed in all similar cases.
The principle of stare decisis was the basis for the development of hierarchy of precedent and the hierarchy of the current court structure, as this principle states that a judge must follow the decisions of the higher courts.
The doctrine of binding precedent is a fundamental part of the law.
Judicial Precedent/Stare decisis
The doctrine of judicial precedent ‘creates the expectation that save for the intervention of the legislature, the law will remain as it is state to be in the precedent’
The doctrine of judicial precedent also known as stare decisis (‘let decided things stand’), or binding precedent, is of fundamental importance within the English legal system. Established through the centuries, it states that the English courts are obliged to follow previous decisions within certain limits.
The doctrine of precedent declares that cases must be decided the same way when the material facts are the same. Not every case forms a precedent, and it is intrinsically linked to the court hierarchy.
In order to establish the precedent of the case, it is necessary to analyse what is said by the judges of case and how the conclusion are reached. The statements made by the judges can be divided into two to types:
Ratio Decidendi
The rule of law upon which the decision is based on is called the ratio decidendi (‘the reason for decision’)
The ratio decidendi is not ‘announced’ in the judgement but must be derived from the case
Obita Dicta
All the other parts of the judgement which do not form part of the ratio decidendi are called ‘obiter dicta’ – ‘things said by the way’, which often are discussions of hypothetical situations
Distinguishing between the ratio decidendi and the Obita Dicta
It is often difficult to distinguish between the two types of legal statement, and can be further complicated when there is more than one judge giving a judgement.
The application of Judicial Precedent within the Court Hierarchy
The European Court of Justice
This court deals with interpretation of the EU treaties, validity of acts of Community institutions and interpretation of the statutes of Council bodies
Its decisions are binding on all English courts by reason of the European Communities Act 1972
It does not seem to be bound by its own decisions
European Court of Human Rights
Britain is a party to the European Convention on Human Rights, enacted by the Human Rights Act 1998 which came into force on October 2nd , 2000
Courts in the United Kingdom must take into account the Strasbourg jurisprudence to interpret legislation in accordance with the Convention
Any person who claims to be aggrieved by a violation of the provisions of this convention, being unsatisfied with the determinations of the domestic courts may complain to the European Court of Human Rights
If the court concludes affirmative decision, the British Government must under international law amend the its law or practice accordingly
House of Lords
The head of the hierarchy of English Courts
Deals only with appeals (mainly from the Court of Appeal or by ‘leapfrog’ from the High Court) – both civil and criminal
Hears around 100 cases a year
Binds all other English courts but not itself
Used to bind itself:
London Tramways v London County Council [1898] AC 375 at 380:
“Of course I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgement was erroneous; but what is that occasional interference with what is perhaps abstract justice, as compared with the inconvenience – the disastrous inconvenience – of having each question subject to being reargued and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth and in fact there would be no real final court of appeal. My lords, ‘interest rei publicae’ is that there should be ‘finis litium’ sometime and there can be no ‘finis litium’ if it were possible to suggest in each case that it might be regarded because it is ‘not an ordinary case’ whatever that may mean.” - Lord Halsbury
This was changed on July 26th, 1966:
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individual can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House.”
The above was issued to the press with an explanatory note:
“Since the House of Lords decided the English case of London Street Tramways v London County Council in 1898, the House have considered themselves bound to follow their own decisions, except where a decision has been given per incuriam in disregard of a statutory provision or another decision binding on them. The statement made is one of great importance, although it should not be supposed that there will frequently be cases in which the House thinks it right not to follow their own precedent. An example of a case in which the House might think it right to depart from a precedent is where they consider that the earlier decision was influenced by the existence of conditions which no longer prevail, and that in modern conditions the law ought to be different.
One consequence of this change is of major importance. The relaxation of the rule of judicial precedent will enable the House of Lords to pay greater attention to judicial decisions reached in the superior courts of the Commonwealth, where they differ from earlier decisions of the House of Lords. That could be of great help in the development of our own law. The superior courts of many other countries are not rigidly bound by their own decisions and the change in the practice of the House of Lords will bring us more into line with them.”
Very rarely it overrules its earlier decisions
