AQA LAW - AS EXAMINATIONS
Unit 1 - LAW01 - Law Making and the Legal System
THE DOCTRINE OF JUDICIAL PRECEDENT
1. Explain the doctrine of judicial precedent
and how it operates within the English system of case law.
Judicial precedent is based on the Latin maxim stare decisis which roughly means
‘stand by what has already been decided’. This means that judgements reached in
earlier cases should be followed in later cases unless there are sound reasons why they
should not be. In other words, judges can create binding precedents by the
judgements they make because other courts are bound to follow these judgements.
This system provides fairness and certainty in the law because defendants can expect
to be treated fairly no matter where the case is heard, and the courts will be reasonably
certain how the law should be applied in particular cases.
Precedent can only operate effectively if the legal reasons for past decisions are made
clear. Therefore, at the end of a case, the judge will make a speech giving his decision
and, most importantly, giving his reasons for his decision. This is called the ratio
decidendi (reason for deciding), and it is the part of the judgement in which the
judge explains the principles of law upon which his decision is based. This is what
creates a precedent for judges to follow in future, similar cases. Judgements made by a
higher court are binding on all courts beneath them.
A judge’s speech may also include obiter dicta (other things said). For example, a
judge may comment on what his decision would have been if the facts of the case had
been different. These comments are not binding in future cases, but they may help
other judges understand the legal reasoning for the ratio decidendi. It is sometimes
difficult to separate the ratio decidendi from the obiter dicta because the judgement is
usually given as a continuous speech with no headings or sections.
If a point of law in a case has never been decided before, the judge will create what is
called an original precedent. For guidance, he will look at cases similar to the one
before him and decide on what legal principles the judgement was based. This will
influence him in the creation of the new precedent. This is called reasoning by
analogy. Nowadays it is accepted that judges are creating new law when they create
judicial precedent.
2. Explain how precedent works within the hierarchy of courts.
In England and Wales the courts operate a rigid doctrine of judicial precedent. This
means that every court is bound to follow any judgement made by a court above it in
the judicial hierarchy.
Since 1973, the highest court affecting the English legal system is the European
Court of Justice. Decisions made by the ECJ are binding on courts throughout the
European Union.
The most senior national court is the House of Lords. Its decisions bind all other
courts in the English legal system. From 1898 (London Street Tramways v London
County Council until 1966, the House of Lords was bound by its previous precedents.
However, the Practice Statement 1966 allows the Lords to depart from previous
precedents where it is in the interests of fairness and justice so to do. The Practice
Statement 1966 allows the Lords more flexibility, but they use this power sparingly as
they wish the public to have confidence that the law is as certain as it can be.
Below the House of Lords is the Court of Appeal which has two divisions: Civil and
Criminal. With limited exceptions, the Appelate Courts are bound by their own past
precedents. The Criminal Division is allowed more flexibility than the Civil Divisions
where the point at issue involves the liberty of the defendant.
Below the Court of Appeal are the three Divisional Courts (Queen’s Bench,
Chancery and Family). These courts are bound by the decisions of the courts above
them. They are also in general bound by their own past decisions.
The High Court is bound by the decisions of all the courts above it, and in turns it
binds the courts beneath it. High Court judges follow each other’s decisions though
they are not obliged to do so.
The so-called inferior courts are the Crown Court, the County Court, and the
Magistrates’ Court. They are bound to follow the decisions of the superior courts,
and it is unlikely that a decision created by an inferior court can create precedent.
3. Explain the role of law reporting in the system of precedent.
For precedent to be effective there must be an accurate record of what decisions have
been made by the courts. In 1865 the Incorporated Council of Law was established
and controlled by the courts to report the law. Judgements are noted down exactly as
delivered by the judge to ensure accuracy.
Other well-established reports include the All England series (All ER) and the
Weekly Law Reports (WLR). In addition, all High Court, Court of Appeal and the
Law Lords cases are reported on the Internet.
Quality newspapers and journals also publish law reports; these are summarised
versions in which the law reporter tries to identify and explain the essential parts of
the judgement.
Explain:
case law
stare decisis
binding precedent
hierarchy of courts
Appeal courts
Practice Statement 1966
ratio decidendi
obiter dicta
Law Reporting – Incorporated Council of Law Reporting 1865 – All England law
reports – Weekly Law Reports – Internet reporting – newspapers and journals
www.lawreports.co.uk (summaries of important cases in the Daily Law Notes section)
www.publications.parliament.uk (reports of cases from the House of Lords)
www.bailii.org (cases from the Court of Appeal)
4. Discuss whether the doctrine of precedent allows judges flexibility in
developing the law (distinguishing, overruling, reversing)
As society changes and develops, our laws must be able to reflect these changes if
they are to be seen as fair and relevant. Judges have a number of ways to avoid
precedent, so they have room to manoeuvre in giving judgement.
Distinguishing is the main device used by judges in all courts for avoiding a binding
precedent. No two cases are exactly the same. Therefore, a judge may regard the facts
of the case before him to be sufficiently different from the facts of the case in which
the binding precedent was set. In these circumstances, the judge is not bound to
follow the original precedent; they may distinguish the case on its material facts. This
creates a second binding precedent. The original precedent remains binding in cases
of the same material facts.
These two cases show how the distinguishing process operates. Balfour v Balfour
(1919) and Merritt v Merritt (1971) both involved a wife making a claim against her
husband for breach of contract. However, in Balfour there was merely a domestic
agreement between husband and wife, while in Merritt husband and wife had made an
agreement in writing after they separated. The court distinguished the facts between
the cases and created a new precedent based on Merritt. Balfour, of course, remained
the precedent for cases similar to itself.
Overruling occurs where a court in a later case states that the legal rule decided in an
earlier case is wrong. For example, the House of Lords can overrule a decision of the
Court of Appeal by declaring the Court of Appeal reached the wrong legal rule. The
House of Lords may also use its power under the Practice Statement 1966 to overrule
one of its own past decisions.
For example, in Davis v Johnson (1979) the Lords ruled that judges could not use
Hansard (the record of what is said in Parliament) to try and decide what certain
words in an Act of Parliament meant. However, in Pepper v Hart (1993) the Lords
overruled David v Johnson (1979) and created a new precedent allowing judges to
consult Hansard.
Reversing occurs where a higher court reverses the decision of a lower court on
appeal in the same case. In other words, reversing is where the same case has gone to
appeal and the higher court reaches the opposite decision to that of the lower court.
For example, in Fitzpatrick v Sterling Housing Association Ltd (2000), the Court
of Appeal refused to allow a homosexual partner of the deceased tenant to take over
the tenancy as he could not be considered part of his family as required under the
Rent Act 1977. Fitzpatrick appealed to the House of Lords who reversed the decision
of the Court of Appeal, so giving same-sex partners the same right as different sex
partners.
(It is important you make the difference between overruling and reversing
clear. Many candidates muddle the explanations).
Distinguishing: avoiding a previous precedent because the facts in the present case
are materially different. Balfour v Balfour (1919) not followed in Merritt v Merritt
(1971).
Overruling: avoiding a precedent by stating the legal ruling in an earlier case is wrong.
Pepper v Hart (1993) overruled and replaced Davis v Johnson (1979) on the use of
Hansard.
Reversing: a higher court overturns the decision of a lower court on appeal. This can
only happen if the case is appealed to a higher court. In Fitzpatrick v Sterling
Housing Association Ltd (2000), the House of Lords overturned the decision of
the Court of Appeal.
5. Outline and briefly explain the court structure.
European Court of Justice
It is necessary for there to be a settled court hierarchy as judges need to know what
judicial precedents they are bound to follow.
Since 1973, the European Court of Justice has been the highest court affecting our
legal system. A decision made by the ECJ is binding on all courts in the European
Union, including those of the United Kingdom. The ECJ is prepared to overrule its
own past decisions if it feels this is necessary. European courts are generally more
flexible than courts in the United Kingdom.
The House of Lords is the senior national court and its decisions bind all other
courts in the English legal system. Until 1966, the HL regarded itself as bound by its
own previous decisions, unless the decision was made per incuriam (‘through lack of
care’). However, Practice Statement 1966 stated that the HL in future would be free
to depart from its own previous decision “where it appears right to do so”. However,
this freedom is used sparingly so as to maintain certainty and consistency in decisions.
Pepper v Hart (1993) overruled David v Johnson (1979).
The Court of Appeal (CA) is directly below the House of Lords in the court
structure. It is divided into two divisions, the Civil Division and the Criminal
Division. As a general rule, the Court of Appeal is bound by its own previous
decisions with some limited exceptions to this rule. The Criminal Division is
permitted to be more flexible where the decision involves the liberty of the defendant.
The High Court contains three separate appeal courts: The Queen’s Bench,
Chancery, and Family. All three are bound by decision of the Court of Appeal. The
House of Lords and the European Court of Justice. The Divisional Courts, with a few
exceptions, are bound by their own decisions.
The Crown Court, the County Court and the Magistrates’ Court are described as
inferior courts. This is because they are bound to follow decisions made by all higher
courts. In addition, it is unlikely that a decision made by an inferior court can create
binding precedent. In theory, the Crown Court can set precedent for the Magistrates’
Court on a point of law; however, since such decisions are hardly ever recorded they
have little practical effect.
6. Discuss the advantages and disadvantages of the system of precedent.
Advantages
The system of judicial precedent has several advantages, including certainty,
consistency and fairness, precision and flexibility.
Precedent provides certainty because the courts must follow decisions made in
previous similar cases. Precedents are established by the ratio decidendi and explained in
the obiter dicta. This means people know what the law is and how it is likely to be
applied in their case. For example, a lawyer can advise his client about the likely
outcome of his case, based on the knowledge of precedent in similar cases. It also
allows people in business to make financial and other arrangements secure they will be
recognised and supported by the law. The Practice Statement 1966 reminds us how
important certainty is in the law.
Precedent provides consistency and fairness because defendants know they will
receive the same treatment no matter where their case is heard or who is hearing the
case. As in sport, the rules of law will be applied equally to both sides. Precedent also
means that judges cannot make random or arbitrary decisions because judges are
bound to apply binding precedent in similar cases.
However, judges also have considerable flexibility in avoiding precedent by
distinguishing, overruling and reversing. For example, the House of Lords can now
use the Practice Statement 1966 to change the law when necessary; for example,
Pepper v Hart (1993) overruled and replaced Davis v Johnson (1979) on the use of
Hansard.
Precedent provides precision in law-making. As new precedents are established,
English case law becomes more and more precise. For example, the judge was able to
distinguish between Balfour v Balfour (1919) and Merritt v Merritt (1971), so that
we new have precedents appropriate to cases similar in the material facts to these
cases.
Disadvantages
The system of judicial precedent has several disadvantages, including rigidity,
complexity and slowness of growth.
Although judges can avoid precedent by distinguishing, reversing, and overruling,
there is still a degree of rigidity or inflexibility in the system. For example, although
Crown Courts hear very serious cases, they cannot create binding precedent. This
means too many cases go to the Court of Appeal that could be dealt with in the lower
courts.
In addition, the Court of Appeal itself is generally bound by its own decisions, so
many cases that could be dealt with on appeal are passed up to the House of Lords.
However, the Law Lords can only hear about 50 cases a year. This makes the system
slow and cumbersome , and means that bad precedents may be in force far longer
than necessary. Sometimes there is a very long wait for a suitable case to be appealed
ball the way to the House of Lords.
The system of precedent has become increasingly complex. Distinguishing is useful
in avoiding past decisions, but it has made the law very complex in some areas
because the differences in the material facts may be so small to justify yet another
precedent. There are nearly half a million reported cases, so it is not easy to find all
the relevant law even with computerised data bases.
Another problem is in the judgements themselves, which are often very long with
no clear distinction between the reason for the decision (ratio decidendi) and other
things said by the judge (obiter dicta). This makes is difficult in some cases to extract
the ratio decidendi. Indeed, in Dodd’s Case (1973), the judges in the Court of Appeal
said they were unable to find the ratio decidendi in a decision of the House of Lords.
THE DOCTRINE OF JUDICIAL PRECEDENT - TEST YOURSELF
How Precedent operates within the English system of Case Law
1.
2.
3.
4.
5.
6.
7.
8.
9.
10
12
13
14
On what Latin maxim is judicial precedent based?
What does this maxim mean?
What do you understand by ‘binding’ precedent?
What does the system of precedent provide, and how?
Why must the legal reasons for past decisions be made clear?
In one word, what do we call the judge’s speech at the end of case?
What does the ratio decidendi explain?
What does the ratio decidendi create?
What is the meaning of obiter dicta?
What might the obiter dicta contain?
What difficulty sometimes arises between the ratio decidendi and the obiter dicta?
Explain the meaning of ‘original precedent’.
Where will the judge look for guidance in creating an original precedent?
What kind of reasoning is this?
15 In relation to precedent, what is generally accepted nowadays?
How precedent works within the hierarchy of courts
1.
2.
3.
4.
5.
Why can the doctrine of precedent be described as rigid?
Since 1973, what has been the highest court affecting English law?
Why are decisions made by the ECJ so powerful?
What is the most senior national court in the United Kingdom?
Explain the significance of London Street Tramways v London County Council
(1898).
6. Why do you think the Lords reached this decision in 1898?
7. What does the Practice Statement 1966 empower the Lords to do?
8. When is this power used?
9. Why is this power used sparingly?
10 Name the two Divisions of the Court of Appeal.
11 Which Division is allowed more flexibility, and why?
12 Name the three Divisional Courts below the Court of Appeal.
13 These three Divisional Courts are bound by the decisions of the courts above them,
but are they also bound by their own past decisions?
14 To what extent is the High Court bound by precedent?
15 Explain how precedent affects the so-called inferior courts.
The role of law reporting in the system of precedent.
1.
2.
3.
4.
5.
Why is it essential that ratio decidendi are reported accurately?
Explain the importance of the Incorporated Council of Law 1865.
Name two organisations who regularly report new precedents.
Where are cases heard in High Court, Court of Appeal and the Law Lords
now reported?
Where can the general public read abbreviated reports of important cases?
Flexibility in developing the law (distinguishing, overruling, reversing)
Avoiding Precedent
distinguishing
overruling
reversing
1.
2.
3.
4.
5.
6.
Why must judges be able to avoid precedent?
What is the main device used by judges in all courts
for avoiding a binding precedent?
On what grounds does a judge distinguish between two cases?
What do you understand by ‘the material facts’ of a case?
When a judge distinguishes between two cases because of their material facts,
how many precedents become operative?
Explain in some detail how Balfour v Balfour (1919) and Merritt v Merritt (1971)
are very useful in demonstrating how two cases may be distinguished
from each other.
7.
8.
In avoiding precedent, explain how overruling occurs.
Give an example of how the House of Lords can overrule a decision
of the Court of Appeal.
9. How have the House of Lords been empowered to overrule their own past decisions?
10 Explain in some detail how the Lords used Pepper v Hart (1993)
to overrule their earlier decision in Davis v Johnson (1979).
11 In avoiding precedent, explain how reversing occurs.
12 In other words,…………
Complete the sentence.
13 Explain in some detail how Fitzpatrick v Sterling Housing Association Ltd (2000)
is very useful in demonstrating how reversing occurs.
THE ADVANTAGES & DISADVANTAGES
OF JUDICIAL PRECEDENT
Advantages of Judicial Precedent
Complete the sentences
The system of judicial precedent has several advantages, including c……..y,
f..rness, pre…ion and fl...ibility
con……cy and
Firstly, precedent provides certainty because the courts must ………………………. similar
cases. Precedents are established by the ratio ……………… and explained in the ……………… .
This means people know what the law is and how it is likely to be ……. in their case. For
example, a lawyer can advise his client about the likely ……. of his case, based on the ……… of
precedent in similar cases. It also allows people in business to make financial and other
…………… secure they will be recognised and supported by the law. The Practice Statement
1966 reminds us how important ………….. is in the law.
Secondly, precedent provides consistency and fairness because defendants know they will
receive the ….. treatment no matter where their case is heard or who is ……. the case. As in
sport, the rules of law will be applied ……. to both sides. Precedent also means that judges
cannot make r….m or ar…rary decisions because judges are bound to apply b……g precedent in
similar cases.
However, judges also have considerable flexibility in avoiding precedent by dis……….ing,
over…..g and rev….ing. For example, the House of Lords can now use the Practice Statement
1966 to change the law when necessary; for example, Pepper v Hart (1993) overruled and
replaced Davis v Johnson (1979) on the use of Ha….d.
Thirdly, precedent provides precision in law-making. As new precedents are ……….., English
case law becomes more and more precise. For example, the judge was able to d……….h
between Balfour v Balfour (1919) and Merritt v Merritt (1971), so that we new have
precedents ap………..te to cases similar in the mat….l facts to these cases.
Disadvantages of Judicial Precedent
Complete the sentences
The system of judicial precedent has several disadvantages, including rigidity, complexity and
slowness of growth.
Firstly, although judges can avoid precedent by d…………..g, re…..ing, and over…ing, there is
still a degree of rigidity or inflexibility in the system. For example, although C…n Courts hear
very serious cases, they cannot create b…..g precedent. This means too many cases go to the
Court of Ap….l that could be dealt with in the l…r courts.
Secondly, the Court of Appeal itself is generally b…d by its own decisions, so many cases that
could be dealt with on appeal are p….d up to the House of Lords. However, the Law Lords can
only hear about ….. cases a year. This makes the system slow and cumbersome , and means
that bad precedents may be in f…e far longer than necessary. Sometimes there is a very long
wait for a s…..le case to be appealed all the way to the House of Lords.
Thirdly, the system of precedent has become increasingly complex. Distinguishing is useful in
avoiding p..t decisions, but it has made the law very co..lex in some areas because the differences
in the ma…ial facts may be so small to ju…fy yet another precedent. There are nearly half a
mi..ion reported cases, so it is not easy to find all the relevant law even with computerised data
bases.
Fourthly, another problem is in the judgements themselves, which are often very long with no
cl..r distinction between the reason for the decision (ratio decidendi) and other things said by the
judge (obiter dicta). This makes is di..icult in some cases to extract the ratio decidendi. Indeed,
in Dodd’s Case (1973), the judges in the C…t of App..l said they were unable to find the ratio
decidendi in a de…ion of the House of Lords.