Judicial precedent

Judicial precedent is of fundamental importance in the English legal system, ¹⁾ ______ the principles of the common law, which have developed gradually through case-law over the centuries, are the main source of English law. The English courts are bound to follow decisions of higher courts in the judicial hierarchy; ²⁾ ______ in many cases they must also follow their own decisions. Decisions of inferior courts, ³⁾ ______, do not have binding force. Decisions concerning the interpretation of statutes are also binding, ⁴⁾ ______ English lawyers must always refer to case-law even if the facts of the case they are preparing are covered by statute-law and not common-law rules. The law reports are ⁵⁾ ______ basic works of reference for members of the English legal profession.

Read the text. Make notes of its main points.

TEXT 1

Sources of modern law

Each country in the world, even each state of the United States, has its own system of law. However, it is generally true to say that there are two main traditions of law in the world. One is based on English Common law and has been adopted by many Commonwealth countries and most of the United States.

The other tradition, sometimes known as Continental, or Roman law, has developed in most of continental Europe, Latin America and many countries in Asia and Africa which have been strongly influenced by Europe. Continental law has also influenced Japan and several other countries.

Since the fashion was set by the Code Napoleon many continental countries have codified much of their law, public and private; on the Continent, therefore, the volume of written law tends to preponderate over the volume of unwritten. But in England unwritten law is predominant, for more of Common law derives from judicial precedents rather than from legislative enactment. This does not, of course, mean that none of Common law is codified, for many parts of it are; such as the law relating to the sale of goods (Sale of Goods Act 1979) and the law relating to partnership (Partnership Act 1890). All that is meant is that, although British Parliament casts increasing multitudes of statutes, the system of wholesale codification which prevails in many continental countries is not adopted yet.

Common law systems

Common law, or case law systems, particularly that of England, differ from Continental law in having developed gradually throughout history, not as the result of government attempts to define or codify every legal relation. Customs and court rulings have been as important as statutes (government legislation). Judges do not merely apply the law, in some cases they make law, since their interpretations may become precedents for other courts to follow.

Two principal sources of English law must be mentioned. These principal sources are Legislation, and Judicial Precedent.

Before William of Normandy invaded England in 1066, law was administered by a series of local courts and no law was common to the whole kingdom. There existed a primitive legal system based on local custom. The effect of the Norman conquest was to set in motion the unification of these local customs into one system of law with the King at its head. The system was common to all men and for this reason was known as “common law”. The Norman Kings sent travelling judges around the country and gradually a "common law" developed, under the authority of three common courts in London. Judges dealt with both criminal cases and civil disputes between individuals. The ascendancy of the King’s courts over local courts took about 300 years, during which the King gradually assumed control through his itinerant justices, and established a central system of courts. The growth of the King’s courts was resisted by the local barons, landowners and sheriffs whose jurisdiction (and revenue) was being diminished.

Although local and ancient customs played their part, uniform application of the law throughout the country was promoted by the gradual development of the doctrine of precedent.

By this principle, judges attempted to apply existing customs and laws to each new case, rather than looking to the government to write new laws. If the essential elements of a case were the same as those of previous recorded cases, then the judge was bound to reach the same decision regarding guilt or innocence. If no precedent could be found, then the judge made a decision based upon existing legal principles, and his decisions would become a precedent for other courts to follow when a similar case arose. The doctrine of precedent is still a central feature of modern common law systems. Courts are bound by the decisions of previous courts unless it can be shown that the facts differ from previous cases. Sometimes governments make new laws — statutes to modify or clarify the common law, or to make rules where none existed before.

The precedents formed by decided cases are, as Bacon wrote, the ‘anchors of the laws’, but facts are infinitely various and by no means all cases are exactly covered by previous authority. Quite the reverse, the facts in issue often resemble two or more divergent authorities. When the judge rules in such a case he legislates, because future courts must usually ‘follow’ him. But judges do not exercise their discretion in an arbitrary way; they rest their judgments upon the general principles enshrined in case-law as a whole. These principles have been evolved by the courts through the centuries. Thus, in a sense the history of the common law is the story of the evolution of the judges’ conception of justice realized in the form of rules of law intended to be general in their application and as easily ascertainable as possible.

Legislation is enacted law. In England the ultimate legislator is Parliament, for in their traditional constitutional theory Parliament is sovereign. ‘Parliamentary sovereignty’ means that:

1) all legislative power within the realm is vested in Parliament, or is derived from the authority of Parliament — Parliament thus has no rival within the legislative sphere;

2) there is no legal limit to the power of Parliament. Parliament may by Act delegate legislative powers to other bodies and even to individuals but it may also, by Act, remove these powers as simply as it has conferred them. By Act, moreover, Parliament may make any laws it pleases however perverse or ‘wrong’ and the courts are bound to apply them.

The enactments of Parliament are not subject to question. In the legislative sphere Parliament is thus legally ‘sovereign’ and master, but this does not mean that the courts have no influence upon the development of enacted law; for, in order to be applied, every enactment, however it be promulgated, has to be interpreted (or construed), and the courts are the recognized interpreters of the law. The meaning of words is seldom self-evident; they will often bear two, or even more, possible interpretations and hence the courts must always exercise a considerable degree of control over the practical application of statutes (enactments of Parliament).

Another important feature of the common law tradition is equity. By the fourteenth century many people in England were dissatisfied with the inflexibility of the common law, and a practice developed of appealing directly to the king or to his chief legal administrator, the Lord Chancellor. As the Lord Chancellor's court became more willing to modify existing common law in order to solve disputes, a new system of law developed alongside the common law. The purpose of Equity was to add to or supplement common-law rules in cases where these were too rigid to give justice. This system recognized rights that were not enforced as common law but which were considered “equitable”, or just, such as the right to force someone to fulfill a contract rather than simply pay damages for breaking it or the rights of a beneficiary of a trust. The courts of common law and of equity existed alongside each other for centuries.

One problem resulting from the existence of two systems of justice was that a person often had to begin actions in different courts in order to get a satisfactory solution. For example, in a breach (breaking) of contract claim, a person had to seek specific performance (an order forcing the other party to do something) in court of equity, and damages (monetary compensation for his loss) in a common law court. In 1873 the two systems were unified, and since then they have been administered by the same courts. Nowadays a lawyer can pursue common law and equitable claims in the same court.