1. Sources and Methods of English Common Law John Bell jsb48@cam.ac.uk

2. 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)

3. 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

4. English and Welsh courts Court of Appeal High Court County Court Crown Court Magistrates Court

5. 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

6. Behrens v Bertram Mills Circus [1957] 2 QB 1

7. 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.

8. 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

9. 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

10. Distinguishing: Mr Van Oss’s argument An elephant is ferae naturae unless it is a Burmese elephant

11. Reading Statutes

12. 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

13. 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

14. 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

15. 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.

16. Permitted sources To clarify apparent ambiguity (not to create it) Legislative documents – Within text – Hansard Policy documents – White papers – Law Commission Reports – Treaties