Common Law and Precedent


Common Law Systems - unlike Civil Law Systems: the first codes were civil, mainly derived from roman law.
Common Law - unlike local laws: law established by the royal courts common throughout the country.
- unlike statutes: those are written, Common Law is based on precedent.
- unlike equity: that is law administered by different courts

Precedent: Precedents bind inferiour courts. Law is developed on a case-by-case basis. Common Law is made by the courts, not Parliament. Law based on precedent is said to be more flexible. However, since precedents are normally binding even for the highest courts, that flexibility may conflict with the need for certainty. After all, precedents are binding because they are the law.House of Lords: Precedents are normally binding, but the House will deviate from a previous decision when it feels right to do so (1966 statement by Lord Chancellor). HoL is bound by ECJ decisions involving Treaty of Rome + UEC. Binds all other courts.Court of Appeal: Precedents are binding. Exceptions laid down in Young v. Bristol Aeroplane (1944): (1) different decision by HoL, (2) Two conflicting CoA decisions, (3) decision given per incuriam. Binds all inferior courts.High Court: Will normally follow its own precedents, but they are not binding; decisions of HoL and CoA are binding. Binds inferior courts.
County, Crown, Maggies Ct. - bound by all superior courts. Bind no one.

The binding element in precedents: ratio decidendi (binding legal principle; developed case by case, judges want to leave freedom; can be enlarged or narrowed, since no two cases are the same); enlarging: apply principle previously used to different facts and restate that principle; narrowing: not applying the principle by giving further, more detailed definitions of the principle. not so obiter dicta ("things said by the way"; hypothetical situations); just what is ratio decidendi is first discovered in following cases. Judges may give several reason for a decision, in which case all are rationes decidendi.

Reversing: a decision reached in favor of the appellant.

Overruling: when a higher court in a later case refuses to endorse the statement of law in an earlier case. Overruling is the actual changing of the law.

Distinguishing: occurs when the facts of a later case are sufficiently different to justify the court reaching a different decision from an earlier case involving the same legal principle.

Important Features:
(1) Judges decide cases according to existing legal principles.
(2) Judges apply rules of law contained in earlier (relevant) cases.
(3) Judicial precedent depends on the hierarchy of the courts.
(4) A precedent can cease to be binding by being overruled.