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Sources of Law Precedent

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1 Sources of Law Precedent
AS Level Law Sources of Law Precedent Notes:

2 AS Level Law What You Need to Know:
What is meant by a system of binding precedent The court hierarchy How a precedent can be altered or avoided The limitations on judicial law-making What You Need to Discuss: The balance between certainty and flexibility in the operation of precedent Notes: The law-making partnership between Parliament and the courts

3 AS Level Law Introduction
the English Legal System is a Common Law system this means that much of the law has been developed over time by the courts the basis of this system of precedent is the principle of stare decisis Notes: this requires a later court to use the same reasoning as an earlier court where the two cases raise the same legal issues - ensures a just process

4 AS Level Law Three essential elements A hierarchy of courts:
this establishes which decisions are binding on which courts decisions of higher courts are binding on lower courts highest court = House of Lords next most authoritative court = Court of Appeal Notes: the Divisional Courts and the High Court can also establish precedent BUT bulk of common law is found in decisions of the House of Lords and Court of Appeal

5 AS Level Law Accurate law reporting:
this allows these legal principles to be collated, identified and accessed earliest form = the Year Books (from 1272) modern reporting dates from the Council on Law Reporting (est. 1865) also private series of reports (e.g. All ER) journals (e.g. NLJ) and newspapers (e.g. The Times) Notes: most recent innovations: on-line systems (e.g. LEXIS), cd-rom, and the internet

6 AS Level Law The binding element: judgement contains four elements:
statement of material (relevant) facts statement of legal principle(s) material to the decision - the ratio decidendi discussion of legal principles raised in argument but not material to the decision - obiter dicta Notes: the decision or verdict

7 AS Level Law the binding element in future cases is the ratio
obiter dicta, while never binding, may have strong persuasive force other forms of persuasive authority include: decisions of other Common Law jurisdictions (esp. Australia, Canada and New Zealand) Notes: decisions of the Privy Council writing of legal academics

8 AS Level Law Flexibility and Certainty
certainty needed to allow people to plan/lawyers to advise flexibility needed to enable Common Law to develop to meet changing times therefore, system needs to balance these two competing, but equally legitimate, aims Notes: binding nature of the ratio creates a foundation of certainty

9 AS Level Law flexibility introduced by:
overruling - higher courts can overrule lower courts distinguishing - where a lower court is able to point to material differences that justify the application of different principles Notes: departing - where, in certain circumstances, a court can depart from its own previous decision

10 AS Level Law House of Lords and departing:
until 1966, bound by its own previous decisions (London Tramways v LCC [1898]) created block at the top of the system Lord Chancellor issues the Practice Statement: normally bound, but may depart when it is right to do so Notes: must consider retrospective effect on civil arrangements and the particular need for certainty in the criminal law

11 AS Level Law Court of Appeal (Civil Division) and departing:
normally bound, subject to exceptions established in Young v Bristol Aeroplane Co [1944] - e.g. where previous decision was given per incuriam - i.e. in ignorance or forgetfulness of some relevant legislation or decision of the House of Lords with the result that the decision is demonstrably wrong (Morelle v Wakeling [1955]; Duke v Reliance Systems [1988]) Notes:

12 AS Level Law Court of Appeal (Criminal Division) and departing:
normally bound, subject to the ‘Bristol Aeroplane’ exceptions also not bound where, in the previous case, the law was misapplied/misunderstood resulting in a conviction - to follow would lead to obvious injustice (R v Taylor [1950]) Notes: extra flexibility due to dealing with the liberty of the citizen

13 AS Level Law Advantages and disadvantages  just system
impartial system practical character certainty tempered by flexibility developments contingent on accidents of litigation Notes: developments hindered by disincentive of retrospective effect complexity

14 AS Level Law Reforms? public interest referrals to counter contingency (would operate similarly to Art.234 references to CJEU) prospective overruling to limit retrospective effect to the instant case and any similar case where proceedings had already commenced Notes:

15 AS Level Law Conclusion
inherent conflict between certainty and flexibility ELS largely successful in achieving balance public interest referrals and prospective overruling could enhance this success Notes: also important to remember that English law is not dependent upon precedent alone for its development

16 AS Level Law Revision Headings: Intro (stare decisis etc)
Court Hierarchy Law Reporting Ratio Decidendi & Obiter Dicta Overruling, Distinguishing, Reversing Advantages & Disadvantages Reforms Notes:

17 AS Level Law Test Questions:
Using you cards, you should now be able to write a short paragraph in response to each of the following questions: Explain the principle of stare decisis. Describe the hierarchy of English courts. Give a brief account of law reporting. Discuss the binding and persuasive elements in a court judgement. Explain the conflict between certainty and flexibility. Describe how flexibility is introduced into a binding system. Evaluate the effectiveness of the operation of precedent, including possible reforms. Notes:

18 AS Level Law Useful Websites:
For information of the judicial work and judgements of the House of Lords, visit For information on the judicial work of the Privy Council, visit For information on the court system generally, access to judgements from various courts, and other useful links, visit and Notes:

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