PRECEDENT AND ENGLISH

LEGAL SYSTEM
[Document subtitle]
Explain and discuss the importance of 'judicial law-making; interpretation, precedent and
judicial deference' in the effective operation of the English Legal System.

The first thing to do while attempting this assessment was to understand the task deeply and
thoroughly. Once I understood the topic, and what I had to do then I embark upon researching
about the topic. First, I went through google and searched for articles and books on google
scholar, Jstor and Hein online. After that, I consulted a couple of books and an encyclopedia.
Once I collected enough material, I set and read the material thoroughly and extracted the
relevant portion, and made my argument. After that, I sat and started writing the essay, which
takes the shape of like presented under.

In the great word of Blackstone, "the doctrine of the law then is this: that precedents and rules be
followed, unless flatly absurd or unjust; for though their reason, be not obvious at first view, yet
we owe such a deference to former times as not to suppose that they acted wholly without
consideration." It is a general rule that the courts are bound by their earlier decision unless some
absurdity is found. The value of precedent is many folds in common law countries, where the
whole legal system is built upon the decision delivered by judges. Like every other legal system,
judges are bound by the law drafted by the legislature. However, once they interpret the law in a
particular way, then it becomes binding on courts to follow the same interpretation pertaining to
the same issue and situations. In some cases, the courts have departed from their earlier rulings
due to the time and cultural changes which have come through over the time. But many times,
precedents set two hundred years ago still hold the grounds.1.

The legal system of England is a common law system, where precedents are given the primary
importance. It is also known as judge made law. In this system, many of the principles of the
legal system are made by the judges through their decision in a different cases. The English legal
system is based on hierarchy. The lower courts are bound to follow the precedent set by the
higher courts, and higher courts are also bound by their own judgments unless there is some
gross error.2. The House of Lords is bound by its holdings every time, the Court of Appeal is
bound by judgments delivered by it; however, the decision taken by the court of the first instance

1
Richard, Edward, “The Importance of Precedent” Public Health Law Map,
https://biotech.law.lsu.edu/map/TheImportanceofPrecedent.html accessed July 5, 2021
2
Open Learn, “the role of the courts and the judiciary” the Open University
https://www.open.edu/openlearn/society-politics-law/judges-and-the-law/content-section-1 accessed July 5, 2021
holds persuasive authority over other similar courts. The value of judgment does not hold in a
reverse setting, the higher courts are free to agree or disagree with the opinion of the lower
courts. The legislature made law is not that common. For example, in the English system, murder
is a crime, and this has been made a crime by the judge, not by the parliament. However, after
the judges have made the law, the legislature has codified it. In any way, the judge made law is
as important as the legislature made law. In the words of Gray, "the law stands as it does today
upon the opinions of individuals in judicial position on matters as to which there was no general
practice, no custom, no belief, no expectation, in the community."3 In England, the value of
judgment is attached with its reporting. Any judgment which is not published is not a precedent.

Before England was conquered by the Normans in 1066, England had no single legal system. It
was divided into many different legal systems, each region holding up to its own legal values.
These regions had their own customary rules, and these customs varied from region to region.
Courts were established in each region, which was deciding cases in accordance with the
customary rules. Most of the time, it was arbitrary and enforced differently. In 1154, in the reign
of Henry II, the legal system was institutionalized, common courts were formed at the country
level by incorporating the local customs into a national system. In this way, the arbitrary local
system of justice was abolished, and a uniform system was introduced. The primary purpose
behind unfirming the local customs was to provide a common law to the country from where it
got its name as common law. Judges were appointed to decide the case, and their judgments were
written down. With the jotting down and publication of the judges' decision, the value of past
practice got increased, and they started using these precedents in arguing new cases. Initially,
these were given a persuasive authority, but gradually they became binding. These were the
practices that eventually developed into the common law of the England. Gradually the courts
started setting the jurisdiction, pecuniary and territorial. Many political and other factors were
also influencing in setting up limits or expanding of the court's jurisdiction.

There are three types of interpretation made by courts in a common-law country. The first is the
statutory interpretation, the second interpretation of the constitution, and the third is the
interpretation on precedent from case to case basis4. The most important role the courts play is
3
Hanna, John “the role of precedent in the judicial decision" 2 Vill. L. Rev. 367 (1957)
https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1425&context=vlr accessed July 5, 2021
4
Hanna, John “the role of precedent in the judicial decision" 2 Vill. L. Rev. 367 (1957)
https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1425&context=vlr accessed July 5, 2021
the interpretation of statutes. When the legislature drafts a statute, a common understanding is
that it should be unambiguous, but it is not. Most of the time, the words and the formulation of
the law are such that it needs aid to understand. In many cases, parties come to the court over a
difference in the meaning of a word in a statute. The most famous example is the court's
interpretation of the Dangerous Dogs Act 19915. In this case, the parties came over to court over
a difference of interpretation of a clause in the statute, which was the categorization of animals.
The act said, "any dog of the type known as the pit bull terrier" it was silent on whether the word
"type" includes the same as a breed6. Judicial interpretation is no whimsical and arbitrary, or it
depends on the discretion of the judges. Over time the courts have developed rules and principles
to interprets words and phrases. There are five basic rules of interpretation, literal rule, the
golden rule, the mischief rule, and the purposive rule. However, the type of rule a judge applies
is his or her discretion, and it depends upon the type of the case.

Every judgment contains two parts Ration dicidendi and Obiter Dicta. In ration decidendi, the
judges give their reason for coming to a particular conclusion. It is the main operating part that
becomes a precedent for future cases. In Obiter Dicta, the judge talks about general things which
do not become part of the main judgment. It does not hold any binding authority it merely serves
as a persuasive authority.7. Furthermore, there are three kinds of precedents. The original
precedent is a precedent that is newly established. It means previously there was not such a
precedent, so the judges made new law. The second is binding precedent. As its name suggests,
an issue has been settled by the court before, and now it is binding upon the courts if they decide
a similar issue. The third is persuasive precedent. This type of precedent is not binding on the
future court, but if the courts want to draw their reasoning from it, they can do it. There are many
instances where the courts have departed from their own precedent, and sometimes they reverse
their own earlier findings. These types of incidents are rare and happen in extraordinary
situations.

5
Rodrigo, "Discuss the role and importance of the doctrine of judicial precedent in English legal system. What are
the advantages and disadvantages of the doctrine” the WritePass journal,
https://writepass.com/journal/2017/01/discuss-the-role-and-importance-of-the-doctrine-of-judicial-precedent-in-
english-legal-system-what-are-the-advantages-and-disadvantages-of-the-doctrine/ (2017) accessed July 5, 2021
6
Holland v Crisafulli, [1998] QSC 199
7
All Answers ltd, 'Doctrine of Precedent in English Legal System' (Lawteacher.net, July 2021)
https://www.lawteacher.net/free-law-essays/constitutional-law/doctrine-of-precedent-in-english-legal-system-
constitutional-law-essay.php?vref=1 accessed 4 July 2021
In conclusion, the doctrine of judge made law is an integral part of the English legal system. It
gives the system and the law the certainty that should be a part of any legal system. The doctrine
of precedent also provides the legal system a hierarchy where there is less chance of deviating
from set standards. The common law system is said to be rigid, but the court has been factoring
in social changes while deciding cases. It is also inevitable for the courts to ignore the current
situation and hold up with centuries-old precedents, so in some cases, the court does consider
change, and if holding up with a precedent harms someone, then courts do deviate from their
earlier judgments.

As my previous work was not up to the mark and failed in meeting the set criteria. In this draft, I
have tried my best to follow the instruction given in the assignment outline and also the feedback
provided to me. The feedback was of great help in redrafting my work, it helped me researching
and finding new sources. Through the feedback, I was able to understand the topic and the
assignment more thoroughly and able to give a deeper understanding of the topic. The feedback
was a key to a deeper research on the topic. There were five learning outcomes, the first was to
identify and analyze the role of judges in developing the civil and criminal justice system. Judges
had great power when it came to making the law. They were the actual lawmakers, so their role
as a central one in the legal system. This task challenged my research skills which prompted me
to improve them further. It was another aim of this assessment. The amount and type of research
needed to complete this assignment was not an easy one, which effectively aided in learning new
things. It helped in distilling academic/legal arguments from relevant sources and able to
articulate these arguments in a clear and comprehensive manner. Further, it helped me in
analyzing legal issues set against the background of the political, social, economic, or cultural
contexts in which they may arise.