English Common Law and Judicial Precedent
Sources and Methods of English
Common Law
John Bell
jsb48@cam.ac.uk
Stare decisis and precedent
Stare decisis et quieta non movere
Stare decisis = Being obliged to follow a decision you think
is wrong
Precedent = Treating previous cases as AUTHORITY
reasons for a decision in the present case (strong)
OR treating previous cases as INFLUENTIAL reasons for
the present case (weak)
Use of cases in judgments
•
Empirical regularity (practice, not a reason)
•
Good practice to consider (prudential reason)
–
Precedent (broad sense)
•
Something one must consider (obligatory
reason)
–
Precedent (narrow sense)
•
Something one must follow whatever its
merits (exclusionary reason)
–
Stare decisis
English and Welsh courts
What does the Supreme Court do?
•
Final Court for all part of the
UK on civil and criminal law
–
Now includes Scots criminal
law
•
Final Court on Devolution
matters
–
Abstract and concrete review
–
Appeals and references
•
Final Court on Human Rights
Supreme Court, London
Behrens v Bertram Mills Circus [1957]
2 QB 1
Style of Judgment
“It may be unreasonable to
hold the owner of a biting dog
responsible thereafter for
everything it does; but it may
also be unreasonable to limit
the liability for a tiger. If a
person wakes up in the
middle of the night and finds
an escaping tiger on top of his
bed and suffers a heart attack,
it would be nothing to the
point that the intentions of
the tiger were quite
amiable.” Devlin J [1957] 2 QB
at 17.
The ruling
•
Ratio decidendi: the rule necessary for
resolving the issue under discussion
•
Obiter dictum: other observations
–
Responding to arguments of counsel
–
Identifying issues to be resolved in the future
•
The limits of rulings
–
Positive rules
–
Negative rules
Distinguishing
•
Following = applying the rule exactly to facts
•
Strong distinguishing = changing the rule by
adding a qualification
–
A+B,
but not C
= result different from A+B
•
Weak distinguishing = Explaining why the facts
in the instant case do not fit within the ruling
A+B
Distinguishing: Mr Van Oss’s argument
An elephant is ferae naturae
unless it is a Burmese
elephant
Reading Statutes
Local Government (Religious etc
Observances) Act 2015
No Welsh druid prayers!
•
Very detailed provisions
presuppose a literal reading of the
text by the courts
•
Very precise definitions provided:
Act aims to be self-contained
•
Rules on “local government”
•
Extension to 25 categories of
other local administration
•
But then qualify the application
of the definition
Offa’s Dyke
Methods of Interpretation
•
Status
–
Rules of practice and legal justification
–
Reference point is the practice of judges
•
Tradition of ‘literal’ interpretation
–
Reading the text as self-contained
–
Expecting the legislature to correct mistakes
•
More recently ‘purposive’ approach
Purposive v Teleological
•
Context different
–
More complex legislative process (no clear
legislator)
–
Multiple languages
–
Court defines ‘telos’ then seeks achieve it
•
Purposive
–
Makes use of more defined & public permitted
sources
–
Resist ‘strained’ interpretation
Cross
1.
The judge must give effect to the grammatical and
ordinary or, where appropriate, the technical meaning
of words in the general context of the statute; he
must also determine the extent of general words with
reference to that context.
2.
If the judge considers that the application of the
words in their grammatical and ordinary sense would
produce a result which is contrary to the purpose of
the statute, he may apply them in any secondary
meaning they are capable of bearing.
Permitted sources
•
To clarify apparent ambiguity (not to create it)
•
Legislative documents
–
Within text
–
Hansard
•
Policy documents
–
White papers
–
Law Commission Reports
–
Treaties
Explore the sources and methods of English Common Law, key concepts like stare decisis and precedent, the use of cases in judgments, English and Welsh courts structure, the role of the Supreme Court, a case example, and styles of judgment. Learn about ruling components like Ratio decidendi and Obiter dictum.
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Presentation Transcript
Sources and Methods of English Common Law John Bell jsb48@cam.ac.uk
Stare decisis and precedent Stare decisis = Being obliged to follow a decision you think is wrong Precedent = Treating previous cases as AUTHORITY reasons for a decision in the present case (strong) OR treating previous cases as INFLUENTIAL reasons for the present case (weak) Stare decisis et quieta non movere
Use of cases in judgments Empirical regularity (practice, not a reason) Good practice to consider (prudential reason) Precedent (broad sense) Something one must consider (obligatory reason) Precedent (narrow sense) Something one must follow whatever its merits (exclusionary reason) Stare decisis
English and Welsh courts Court of Appeal Crown Court High Court County Court Magistrates Court
What does the Supreme Court do? Final Court for all part of the UK on civil and criminal law Now includes Scots criminal law Final Court on Devolution matters Abstract and concrete review Appeals and references Final Court on Human Rights Supreme Court, London
Style of Judgment It may be unreasonable to hold the owner of a biting dog responsible thereafter for everything it does; but it may also be unreasonable to limit the liability for a tiger. If a person wakes up in the middle of the night and finds an escaping tiger on top of his bed and suffers a heart attack, it would be nothing to the point that the intentions of the tiger were quite amiable. Devlin J [1957] 2 QB at 17.
The ruling Ratio decidendi: the rule necessary for resolving the issue under discussion Obiter dictum: other observations Responding to arguments of counsel Identifying issues to be resolved in the future The limits of rulings Positive rules Negative rules
Distinguishing Following = applying the rule exactly to facts Strong distinguishing = changing the rule by adding a qualification A+B, but not C = result different from A+B Weak distinguishing = Explaining why the facts in the instant case do not fit within the ruling A+B
Distinguishing: Mr Van Osss argument An elephant is ferae naturae unless it is a Burmese elephant
Local Government (Religious etc Observances) Act 2015 Very detailed provisions presuppose a literal reading of the text by the courts Very precise definitions provided: Act aims to be self-contained Rules on local government Extension to 25 categories of other local administration But then qualify the application of the definition https://tse1.mm.bing.net/th?id=OIP.M81ed772d1a82aaf9ebad6cb745e83fc2o0w=123h=105c=7rs=1qlt=90pid=3.1rm=2 No Welsh druid prayers! Offa s Dyke
Methods of Interpretation Status Rules of practice and legal justification Reference point is the practice of judges Tradition of literal interpretation Reading the text as self-contained Expecting the legislature to correct mistakes More recently purposive approach
Purposive v Teleological Context different More complex legislative process (no clear legislator) Multiple languages Court defines telos then seeks achieve it Purposive Makes use of more defined & public permitted sources Resist strained interpretation
Cross 1. The judge must give effect to the grammatical and ordinary or, where appropriate, the technical meaning of words in the general context of the statute; he must also determine the extent of general words with reference to that context. 2. If the judge considers that the application of the words in their grammatical and ordinary sense would produce a result which is contrary to the purpose of the statute, he may apply them in any secondary meaning they are capable of bearing.
Permitted sources To clarify apparent ambiguity (not to create it) Legislative documents Within text Hansard Policy documents White papers Law Commission Reports Treaties
