Sources of Law 1 The common law This semester we will be studying English civil law. Today I will give an introduction to the English legal system and to the system of common law.

The English common law system Traditionally based on case law / judge-made law Advantages: speed flexibility precision England and Wales have a common law system as opposed to a civil law system. Common law is a system which is traditionally based on case law, also known as judge-made law. Essentially, if there is no existing law applicable to a particular dispute, the judge can create new law This used to be the main source of law in the English system. Today, judge-made law is less central to the English system. There is significantly more parliamentary legislation than in the past, partly because of the impact of European law – a lot of of the time, a judges role is more about interpreting legislation than really making law. Nonetheless it is stll important to understand how it works. There are many advantages to this system: Speed: no need to wait for Parliament to legislate Flexibility: if an unforeseen situation arises, where no existing law is applicable, the judge can create new law Precision: through cases, judges can develop detailed law in specialist and technical areas where Parliament has neither the time nor the inclination to legislate But there also needs to be stability in the system. The law needs to be predictable – potential liigants need to know what the law is and be able to anticipate how courts are likely to rule.

How is stability ensured? The doctrine of precedent based on the principle of stare decisis The system of precedent – Based on the principle of stare decisis (=«to stand by that which is decided» ie adhere to and apply the decision made in previous cases)

The doctrine of precedent in action When judges decide a case, they write an opinion, which contains: the facts of the case the legal principle used to decide a case = the ratio decidendi binding on lower courts incidental comments or observations - for example, on how the law would be applied if the facts were different = obiter dicta not binding, but can be persuausive When judges decide a case, they write an opinion, which contains the facts of the case the legal principle used to decide a case = the ratio decidendi The ratio decidendi is binding on judges in lower courts, in cases where the facts are suffieicntly similar Incidental comments or observations - for example, on how the law would be applied if the facts were different = obiter dicta Obiter dicta are not binding, but they can be persuasive (a judge may be influenced by them) Opinions are much longer than in France, they can be 40 or 50 pages long. They are gathered together in law reports – books which contain all the decisions of the higher courts. Today there are online versions, much easier to search and access.

The hierarchy of courts Lower courts are bound by the previous decisions of higher courts The court of last resort is the UK Supreme Court: its decisions bind all lower courts it can depart from precedent The Court of Appeal and the High Court bind lower courts are bound by their own precedents The system of precedent is based on a hierarchical court structure SHOW SHEET Lower courts are bound by the previous decisions of higher courts The court of last resort is the UK Supreme Court decisions taken by 12 Supreme Court justices > its decisions bind all lower courts It can depart from precedent if respecting precedent would lead to injustice NEW COURT > used to be called the appeallate committe of HOL (up to 2009) and judges were called Law Lords The Court of Appeal and the High Court bind lower courts are bound by their own precedents

Distinguishing A case can be distinguished from an apparent precedent on the grounds that there are significant differences between the material facts of the two cases the cases raise different legal issues The problem with this from a judge’s point of view is that sometimes this creates a bit too much stability. Sometimes a judge is faced with a case which seems to be a precedent, which he is reluctant to follow – either because the precedent is out of date, society has changed and its no longer relevant, or when it is applied to the case at hand the result is not satisfactory. In this situation, one possibility is to distinguish the case. A case can be distinguished from an apparent precedent on the grounds that there are significant differences between the material facts of the two cases the cases raise different legal issues If a judge can distinguish a case from a previous case, he is no lo,nger bound to follow the legal principle established in that earlier case. Creates some flexibility for judges. .

The importance of legislation Today legislation is an important source of new law. Since Parliament is sovereign… …legislation overrides case law. Finally, we said earlier that case law is a much less important source of law today than in the past Today legislation is an important source of new law. Since Parliament is sovereign… …legislation overrides case law. > legislation takes precedence over case law