Legal System

Task 01

Introduction

Law is a word that means different things at different times. Black’s Law Dictionary says that law
is “a body of rules of action or conduct prescribed by controlling authority, and having binding
legal force. That which must be obeyed and followed by citizens subject to sanctions or legal
consequence is a law.” Black’s Law Dictionary, 6th ed., s.v. “law.”

Sources of Law in the Sri Lankan Legal System

A source of law can be said to be the quarter (source) from which a rule derives its validity as a
rule of law. The sources of law in this sense are not identical in all legal systems

The main sources of law which are recognized in the modern legal systems are as follows:

• Legislation
• Judicial Precedent
• Customs
• Opinions of Writers
• Equity
• Religion

The weight attached to the different sources of law may vary from country to country.

Legislation

Legislation today is the most important source of law. Acts which are passed by Parliament have
the power to repeal all existing legal rules and replace by new legal rules.

However, this power is subject to various constitutional safeguards.

Legislation passed by the present-day parliament which is the supreme law-making body
supersedes all other types of sources of law such as customs, religion, case law etc.

If there is a conflict between an Act passed by parliament and any other source of law, law passed
by parliament prevails.

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In the Sri Lankan legal system, statutes can be classified as follows;

I. Legislation of the UK parliament

II. Prerogative Instruments
III. Statutory instruments
IV. Legislation enacted by local legislatures
V. Delegated legislation

All legal system follows judicial precedent to a certain extent but in countries where the influence
of the English Law or the common taw tradition is followed. Judicial precedent is followed as a
rule and has greater authority.

The doctrine of judicial precedent or store decisis is where a single decision of a superior court is
binding upon a subsequent court.

Sri Lanka has adopted the English doctrine of Store decisis and this can be considered as one of
the important aspects of the British contribution to the Sri Lankan Legal System

There are two aspects to a decision of a judge;

• It will decide the instant dispute between the litigants

• The judge will give reasons for his decision and in doing so a statement and explanation
of the legal rules which he has applied will be set out. These general principles and
relevant rules which am set out in a decision will be treated as authoritative and will be
followed by later judges.

It has been generally accepted that every court is bound to follow any decision of a superior court
and tome appellate courts are also bound by their own decisions

There are two conditions necessary for the doctrine of store depict to apply

• A hierarchy of Courts
• A system of law reporting

However, it is important to note that every aspect of a decision is not binding. It is the ratio
decidendi of a decision of a case of a superior court which is binding on a subsequent or
subordinate court.

The doctrine of ratio decidendi has not been definitively defined;

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According to Halsbury, ratio decidendi is the reason or principle on which the question before a
court has been decided on. That is the general reasons and grounds given for the decision.

Obiter dicta

Obiter dicta are not binding on a subsequent court. As Wiliams states it is "a mere saying by the
way… a statement not relevant to the central issue between the parties, eg: a rule of law stated
merely by way of explanation, analogy or illustration or a suggested rule upon which the decision
is not finally rested"

Although obiter dicta are not binding it would have persuasive authority according to the
reputation of the judge, the eminence of the court and whether or not it is a deliberate
expression of opinion on as point argued before the court.

Distinguishing

This is where a court decides that a precedent cited before it is really different to the facts of the
present case before it and therefore the court will say that the earlier case is not binding on the
subsequent court.

Here the court accepts the ratio expressed in the earlier case but states that it does not apply to
the instant case because of a material difference of facts. Therefore, says that the earlier case is
not binding on the latter case.

Distinguishing is a manner in which the judges overcome some of the defects of store decisis.

The doctrine of store decisis has the disadvantage of binding a court to a previous decision which
is erroneous and unjust and sometimes to legal principles which Is not in accordance with the
current legal trends and ideals.

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Overruling

This is when a superior court definitely and formally deprives all authority of a certain point in a
judgment.

A superior court may overrule an erroneous decision of a court of inferior/lower jurisdiction. The
principle which has been overruled becomes null and void and a new system which replaces it
will be authoritative on the point of law. Overruling can either be done expressly or impliedly.

Overruling can have drastic effects on actions done based on the principle which was overruled.
Therefore, a superior court will always hesitate to overrule a legal principle especially one which
is firmly established.

But if a rule of law is plainly wrong and injustice is caused by the existence of such a rule a
superior court may move to overrule it. Sometimes especially in India and the USA, judges have
overruled certain points and ordered that it should take effect prospectively.

There are however certain exceptions to the doctrine of store decisis, where the binding force
may be destroyed.

I. Abrogated decisions
A decision may be abrogated and cease to be binding if the legislature enacts a statute
which is inconsistent with it or if a superior court reverse or expressly overrule such a
decision.
II. Incuria rule
A decision would be regarded as being per incuriam and not binding if,
a. rendered in ignorance of a statute but not a misconstruction of it
b. rendered in ignorance or forgetfulness of a case of authority, binding on the court
concerned
III. Precedents sub silentio
If a court decides a case without argument or consideration to a particular point of law but
bases the decision on another point the case is not considered es authority on the rule
which it did not consider or which is said to have allowed to pass sub silentio.
IV. Affirmation or reversal on a different ground
V. Effect of changing social and economic conditions

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Customs

Customs are certain practices which a certain community has been in the habit of following over
a long period of time. Not all customs are legally recognized.

In English law there is a distinction between local customs and general customs. Local customs
are rules which are observed in a particular trade or locality. Eg. Local customs relating to fishing.
Kandyan law, Thesawamai law and Muslim law.

General custom is not regarded as ac custom since it applies to all persons and would form the
basis of the common law of the country.

• In Sri Lanka, for a custom to be accepted by the courts them are five tests to be applied
which combine both EL and RDL
• Custom must be ancient
• Custom must be reasonable
• Custom must be certain
• Custom must be observed as a rule
• Conformity with statute and common law

Opinions of Writers

Opinions of writers are a very important source of law in Roman Law and therefore in Roman
Dutch Law. In English law or common law tradition, the opinion of writers are given more
importance In the area of constitutional law.

Religion

In primitive communities’ law, custom and religion could not be distinguished from one another.
Sir Henry Maine, one of the greatest English Jurists of the last century, in his work Ancient law,
published in 1861, traced the very close inter-connection of law and religion in primitive societies.

There has been considerable discussion since Mine, of the question whether all legal systems
took their origin in religion.

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Lord Denning in his work, The Changing .6V 1953. Page 99 states that. "without religion there
can be no morality and without morality there can be no law. He points out that the common taw
of England, as it stands today embodies standards of Christian morality that have been built into
it by generalizations of judges brought up in the Christian faith.

In the present day it can be said that the religion is a source of law only through legislation and
custom.

In England religion is not considered as a source of law but in the middle Eastern countries,
religion still is a source of law.

L.J.M. Cooray states that religion enters the legal system of Sri Lanka in four ways:

• religion has influenced the drafting of legislation affecting Buddhist temporalities and
Muslim mosques, charitable trusts and family affairs.
• where civil or property rights are involved, the courts will adjudicate on religious disputes
• the courts may under section 106 of the Trusts Ordinance 1917, apply religious laws and
custom in the management and administration of religious trusts, places of worship etc.
• religious law may be given affect to if proved as a custom.

Equity

Equity is seen as the trust and reasonable interpretation of law or that which tempers the
harshness and rigours of formulated law. Sri Lankan law has been greatly influenced by the
Roman and English jurisprudence.

English Equitable pri been introduced into to Lanka through statutes which are applicable today,
for eg. The Trusts Ordinance 1917 is a codification of the English law of Trusts, which is a product
of English law of equity.

Reference;

An Introduction to the English Legal System of Sri Lanka by L.J.M. Cooray

An Invitation to the Law, C.G. Weeramantry

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Sources of Law

The factors to which legal precepts owe their content, the agencies that develop them and
formulate them as something behind which the lawmaking and law administering authorities may
put the power of the state may be said to be six.

1. Usage. Legislatures or courts may take up a matter of usage and give the authority of law to a
rule or principle or standard which has been worked out and formulated by usage. For example,
the usages of business were taken over by the courts and banks were allowed to enter into legal
transactions without using the corporate seal. The usage of merchants as to collection of checks
through the clearing house was given effect. The English courts gave effect to the usage of
business men as to crossing of checks, and to the usage of bankers and dealers in securities as
to scrip certificates entitling the holder to certain definitive securities when ready for delivery.

2. Religion. In earlier stages of legal development this is a principal formulating agency. Examples
may be seen in the Hindu law of inheritance, adoption, and liability for an ancestor's debts, and
in the older Roman law as to inheritance, marriage, and possibly contract. In modern law, the

influence of the canon law as to pacts upon the Continental law as to contracts may be noted.

3. Moral and philosophical ideas, especially in equity and natural law. The moral and philosophical
tenets of the time not only affect old precepts, they shape or help shape new ones. But they are
active direct sources chiefly in the stage of equity and natural law, when the identification of morals
and law leads to a notion of the superior sanctity of a body of ideal precepts putting in ideal form
the morality of the time.

4. Adjudication, giving rise to a custom or tradition of judicial action, as usage is a custom of

popular action. In the civil law a settled course of decision of a question of law in a certain way
became a form of law. In the common-law system judicial decision is a form of law. Even those
which are only of "persuasive authority" are among the authoritative grounds of or guides to
decision from which a court is held bound to choose its starting point and so a form rather than a
source. But judicial decisions which have no authority may formulate propositions of law so well-
reasoned that the higher courts may adopt them and give them authority. In that event the
decisions are a source of law.

5. Scientific discussion - what the French call doctrine, that is, discussions by text writers and
commentators, which courts or legislators may give formal authority by embodying them or their
results in decisions or in statutes. The great bulk of Roman law was the work of jurists from the

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second century B. C. to the fourth century A. D. – chiefly from Augustus, 29 B. C. to about the
middle of the third century A. D. They wrote commentaries on the XII Tables and the old law of
the city, wrote commentaries on the praetor's edict, published opinions on controverted questions
of law, edited or wrote notes or commentaries on the writings of preceding jurists, Wrote
institutional books for students, and dogmatic treatises on particular subjects. In the civil, or
modern Roman, law doctrinal writing has been the most important formulating agency. It began
as gloss or later commentary upon the codification of Justinian. It grew into dogmatic exposition
of the system of law as a whole or of particular departments of the law. Voet's commentary on the
Pandects is a book of authority for the Roman-Dutch law of South Africa. Pothier's treatises made
straight the paths of the framers of the French civil code and have been used wherever the
influence of French law extends. The German writers on the Pandects prepared the way for the
twentieth-century codes. Likewige, under the modern codes juristic writing usually begins with
commentaries and develops into systematic treatises on the whole law or on particular subjects
on the basis of the codes. Doctrinal writing has been a much more active and important
formulating agency in Anglo-American law than our theory leads us to admit. Coke formulated the
medieval law authoritatively for the classical era, the seventeenth to the nineteenth century. Nor
did doctrinal writing stop. 'On the contrary, it gained in importance in the nineteenth century. While
in form our law is chiefly the work of judges, in great part judges simply put the guinea stamp of
the state's authority upon propositions which they found worked out for them in advance. Their
creative work was often a work of intelligent selection. The most creative of judges have seldom
made legal precepts out of their own heads. Text books have had much influence. The English
had formerly some strict rules as to citation. In order to be citable, the writer must have been or
have become a judge, and the living were not to be cited. Today English judges frequently refer
to or even discuss the views of living text

writers not on the bench. One hundred years ago Byles on Bills (1829), Sugden on Vendor and
Purchaser (1805), and Sugden on Powers (1808), could be cited in court for what had been written
before the authors went upon the bench. Later, Lindley on Partnership (1863) and its outgrowth,
Lindley on the Law of Companies, could be cited. But one would deceive himself much if he
supposed that Jarman on Wills (1844) or Lewin on Trusts (1837) or Preston on Estates (1826)
whose authors did not become judges did no more than serve as collections of the authorities. In
the United States, Blackstone's Commentaries (1765-1769), as a statement of English law on the
eve of independence long had a quasi-authority and Kent's Commentaries (1826-1830) as a
statement of the common law applicable to American conditions, as we received it, exercised
much influence on our formative law. To name but a few outstanding books, the writings of Judge
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Story helped make the law, and Greenleaf on Evidence (1842-1853), Bishop on Marriage and
Divorce (1852) and on Criminal Law (1856-1858), Parsons on Contracts (1853-1855), and
Washburn on Real Property (1860-1862) had much to do with developing a common law for the
whole country. So much were these books used by the profession and by the judges that an
indignant practitioner is said to have demanded of one court whether there was any statute
making one of them an authority.

6. Legislation; the formulation of precepts directly and immediately by the lawmaking organ of the
state. But here it should be noted that legislation is usually the basis of further development by
commentary or by judicial decision and that many agencies of preparation for legislation present
ready formulated measures to the lawmaking body. Thus, legislation may be a source of law and
statutes a form. Custom as a source of law - customary law. It has been urged that as legislation,
the process, is a source of law and legislation, the product, is a form of law, so custom is both
source and form. Controversy has raged about the subject in England since Austin and on the
Continent since the rise of the historical school. In this controversy the term "customary law" has
been used to include (1) law formulated through custom of popular action, (2) law formulated
through custom of judicial decision, (3) law formulated by doctrinal writing and scientific discussion
of legal principles. Moreover, the second and third have been treated as if -they were forms of the
first, whereas the first is in modern, times relatively the least important and, indeed, usually affects
the law as it is taken up by the second and third rather than by directly determining the legislative
or judicial or administrative processes. Why are all three called customary? It seems to be
because down to the seventeenth century the Corpus Iuris was in the universities supposed

to have legislative authority in western Europe, thought of as "the empire." When it was shown to
have only the authority of long usage in the courts, all that was not legislative in origin was called
customary.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2935415

Conclusion
The sources of law were discussed in this task. Constitutions, statutes, administrative regulations,
and case law are examples. Courts apply and, on occasion, interpret the statute. Courts exist for
a purpose, and law is the set of rules and standards that courts apply to the infinite spectrum of
human behavior and interactions. Individual rights are derived from a variety of sources.

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The rights contained in the United States Constitution, especially those enumerated in the Bill of
Rights and extended to the states by the Due Process Clause of the Fourteenth Amendment, are
the most applicable to criminal courts. Understanding how the United States Supreme Court
extended these protections, which were initially meant to refer only to the federal government, to
state governments is critical to our understanding of these human rights. Since so much of
criminal justice and criminal law is done at the state level, this was a critical move.

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Task 02

Introduction

Law is one part of a set of processes, social, political, economic and cultural, which shape and
direct the development of society. Like all other mechanisms, the law seeks to govern human
behavior.

Many organizations use rules to govern behavior between people. So, rules seem to be an almost
inevitable part of any organized social interaction, and societies have almost always developed
such rules. Primitive societies will have relatively few formal rules, and such rules as exist will
often be derived from other moral codes such as religion. So, a prohibition on murder and theft
may exist, but it may be left to individuals to decide what other arrangements they should make
for themselves.

The basic purposes of law often revolve around ideas of protection and the maintenance of the
peace, which are basic functions of any state. So, laws are passed about crime and disorder and
also the peaceful settlement disputes between citizens. But as social and economic interaction
develops, there will also be rules about how commerce can be practiced and how the state can
care for the needs of its citizens. So, there are rules about industrial processes, land use, and
motoring, and also social welfare, health, housing and education etc.

When a complex legal system has developed, it is important to realize that it does not consist
solely of rules. Legal principles can come into play in order to make sense of collections of rules
and to provide the basis for future development. Legal principles are more generalized statements
than legal rules and will often be akin to moral precepts.

Role of the judge in a democratic society

This term refers to a particular division within the English legal system. As the common law
progressed, there developed a formality among judges, typified by a reluctance to deal with
matters that were not or could not be processed in the proper form of action. Such a refusal to
deal with injustices because they did not fall within the particular procedural and formal
constraints, led to much dissatisfaction with the legal system. A modern analogy would be with a
company or Government department that refused to deal with your complaint because none of its
existing forms was suitable even though you had obviously suffered a wrong. In addition, the
common law courts were perceived to be slow, highly technical and very expensive, and a trivial

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mistake in pleading a case could lose a good argument. The only available remedy was damages,
but such monetary compensation was not always the best remedy. How could people obtain
justice, if not in the common law courts? The response was the development of equity.

Claimants (then called plaintiffs) unable to gain access to the common law courts could appeal
direct to the sovereign, and such pleas would be passed for consideration and decision to the
Lord Chancellor, who acted as ‘the King's conscience’. The Chancellor based his decisions on
principles of natural justice and fairness, making a decision on what seemed ‘right’ in the particular
case rather than following previous precedents. He would look beyond documents which were
considered legally binding by the common law courts. To make sure his decisions were fair, new
procedures, such as a subpoena requiring a witness to attend court, and new remedies, such as
injunctions and specific performance, were developed. This resulted in the emergence of a
specific court, a court of Chancery, constituted to deliver ‘equitable’ or ‘fair’ decisions in cases
which the common law courts declined to deal with. The Court of Chancery gets its name from
the fact that the court was under the control of the Lord Chancellor. The Court of Chancery was
the Court of Equity which developed to provide remedies not available in the courts of common
law.

There were a number of important conditions which a person seeking justice from the Court of
Chancery had to meet:

They had to show that they could not receive justice in the common law courts.

They had to show that they were without blame. This was called coming to the court with ‘clean
hands. By contrast, claimants using the older common law courts did not have to show they were
acting in a morally blameless way.

They had to show that they had not delayed in bringing this case before the court.

The common law courts and Court of Chancery operated separately. On occasion, this led to
conflict, as the common law courts would make an order in favour of one party, and the Court of
Chancery the other party. This situation was resolved by the Earl of Oxford's case (1615), when
the King ruled that in such cases equity would prevail. The division between the common law
courts and the courts of equity continued until they were eventually combined by the Judicature
Acts 1873–5. Prior to this legislation, it was essential for a party to raise their action in the
appropriate court: for example, the courts of common law would not implement equitable
principles, so if an injunction was sought, the case had to be heard by the Court of Chancery. If

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damages were sought, then the case had to be heard by the common law courts. The Acts,
however, provided that every court had the power and the duty to decide cases in line with
common law and equity, with the latter being paramount in the final analysis (section 25 Judicature
Act 1873).

https://www.open.edu/openlearn/society-politics-law/judges-and-the-law/content-section-7.1

The Roles of Judges in Democracies: A Realistic View

What should the role of a judge be in contemporary democracies? That is our topic, but it has two
important component parts that we should examine separately: a judge’s role and democracy.
Let us begin with a few introductory words about the former. On one sensible view, succinctly
articulated by Leslie Green, judges “settle disputes by applying preexisting standards.”1 Pre-
existing standards need not be codified, and they need not be legally authoritative, though most
will be. The central thought is that a judge in a legal system assesses disputed conduct relative
to a norm that (usually) pre-dates the conduct and thus was not created by the judge. Sometimes,
of course, those denominated judges make retroactive decisions, holding actors accountable to
standards that they never would have (or even could have) recognized at the time, and sometimes
the judges themselves create the standard, but these are not the normal cases for the judicial
role, though they may be among the most important roles: authoritative resolution of disputes is
central to civic peace. In any case, let us call making decisions according to pre-existing standards
the Minimal Role of a judge.

Green proposes three further “obligations” of judges, following H.L.A. Hart:

1. “Judges have an obligation to apply valid law in making rulings…and make correct findings
of
fact, know what the law is, keep their knowledge of the law up to date….”;
2. “Judges have an obligation to keep the law ‘legally in good shape’” (quoting John Finnis,
and
meaning judges should resolve unclarity and conflicts);
3. “Judges have obligations to regulate their own processes and the conduct in their courts,
and to
protect the rule of law and the integrity of their jurisdiction from those who would attack it.”

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I shall call these the Minimal-Plus Roles. Probably judges should do all these things too, though
no legal positivist, including Green, thinks that judges have a non-defeasible moral obligation to
apply valid law (per #1). The hard issues about the role of judges in democracies are three-fold:
what are the obligations of judges in determining what the applicable pre-existing standards are
and their meaning; when should judges not apply valid law, per their Minimal-Plus Role? and what
further “obligations” do judges have beyond the Minimal and Minimal-Plus roles?

In the realistic spirit suggested by my title, let me be clear at the start that “obligations” understood
as moral obligations--do not really exist: when we speak of moral “obligations” (or “rights” or
“duties”) we are expressing certain attitudes, often very intense and insistent attitudes, about what
we feel other people should or should not do. Expressing such attitudes is central to human life:
as Nietzsche put it, “all of life is a dispute over taste and tasting,” and there is value in
distinguishing between the strength and character of different tastes, as talk of “obligation” nicely
does. Like other people who are products of the post-Enlightenment, post-WWII consensus, my
“tastes” run towards individual rights and freedom and the rule of law, in which judges can play a
crucial role in constraining behavior by other state actors, since such institutional practices seem
to enhance aggregate human well-being.

Not having illusions about obligation talk, however, is not a matter of philosophical fussiness:
imagine if theorists who said judges have “obligations” to do X said, instead, judges are “required
by God” to do X? Recognizing that the latter is false—God does not exist, and so, unsurprisingly,
has no views about anything, let alone the obligations of judges means it is possible to express
contrary attitudes without violating any moral or rational norm. The conceptual and practical space
is open for contrary recommendations. This is a more important point, I think, than is usually
recognized in recent academic writing. Assumptions about what is the case exercise a powerful
normative force on human behavior and thought sometimes for very good reason, to be sure. For
example, that it is the case that the door is closed and locked gives me a very powerful prudential
reason not to try to march straight through the doorway. Let us call this the normativity of fact:
that something is taken to be factual or real, to be the case, influences, sometimes quite
profoundly, what people think is possible, permissible, and so on. Sometimes, as in the case of
locked doors, that’s a good thing, but other times, it is not. So when we deny, in a realistic spirit,
that moral obligations are metaphysical facts, we are making both a true metaphysical claim (the
ontology of the world includes no moral obligations8 even if it includes some locked doors) and,
at the same time, we are defeating the normativity of fact where its normativity has no real
justification.

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When humans speak of moral “obligations” they are speaking of what they really want or expect
certain people to do, perhaps no matter what. This is certainly revealing about the feelings of
those engaged in such talk, and perhaps also revealing about their social and economic
circumstances: Nazis, for example, thought of their actions in terms of obligations, as did
Stalinists, and in both cases this included judges not surprising, since, as Hart argued a half-
century ago, where there is a legal system, judges take themselves to have obligations to apply
the valid legal norms, even when others might reasonably deem them catastrophically wrong to
feel that way. What this should remind us of is that talk of “obligation” is an important feature of
human social existence, but it is also compatible with a radical revision of human attitudes and
thus a different set of attitudes about what our “obligations” are. Suitably deflating the idea of
“obligation” is important if we are to think clearly about the roles of judges: for example, even in
cases where judges “promise” through an oath of office to do certain things, it may be that they
should sometimes act otherwise. We return to that issue, also, below.

So, can we generalize about the “role of judges in democracies”? We can, though subject to some
constraints, since judges and democracies seem to differ along various dimensions. For example,
there are “civil service” judiciaries in which appointment and promotion depends on evaluation by
other judges, as in Britain; there are “political” judiciaries in which appointment depends on
political connections and affiliation, as in the United States; and there are mixed models in which,
for example, purportedly “peer” evaluation of judges for appointment and promotion is, in fact,
influenced by political partisanship (I am told Italy is such a case). Democracies differ in some
respects as well: some are plutocracies masquerading as democracies (for example, the United
States); some are incipient authoritarian societies masquerading as democracies (for example,
Hungary and Poland); and some are more conventional representative democracies with all their
pathologies of class conflicts and political personalities (for example, the current United Kingdom).

A serious discussion about the roles of judges in democracies has to be realistic both about judges
and about democracies. It has to acknowledge what judges really do and how democracies
actually function, and it has to be clear about what judges can do against those backgrounds. It
also has to be explicit about our normative aspirations and ideals (and also whether judges can
realize them). Normative aspirations and ideals tend to be inchoate and not wholly consistent,
though in their broad outline they are usually clear: no one needs a moral theory, after all, to know
whether they are against racism or in favor of racial equality, against chattel slavery or in favor of
human freedom, against cruelty or in favor of treating people in a dignified way, against human
misery or in favor of human happiness. (The problem, after all, with academic friends of Jobbik in

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Hungary, the National Front in France, or Donald Trump in America is not that they failed to
appreciate the correct moral theory) I suppose throughout that judges, like other regular post-
Enlightenment folk, should try to promote human wellbeing on some reasonable understanding
(the theoretical differences between extant accounts rarely matter given the constraints imposed
in practice on judicial power) though the role of judges in helping to promote human well-being
will vary quite a bit depending on the nature of the judiciary and the

nature of the democracy. My main topic will be the kinds of realistic variations and constraints on

exercise of this judicial role. I thus hope this essay will be a contribution to the on-going revival of
realist political and legal theory against the moralizing fantasies of so much academic writing
about these matters over the last half-century. Theory will be important in what follows for
example, empirical theories about voting behavior in democracies, as well as philosophical claims
about the nature of law but normative theory will not be.

Role Played by the Judges in applying Equitable Principles in

Development of English Law
The law regulates relationships between people. It reflects the values of society. The role of the
judge is to understand the purpose of law in society and to help the law achieve its purpose. But
the law of a society is a living organism. It is based on a factual and social reality that is constantly
changing. Sometimes the change is drastic and easily identifiable. Sometimes the change is
minor and gradual, and cannot be noticed without the proper distance and perspective. Law’s
connection to this fluid reality implies that it too is always changing. Sometimes a change in the
law precedes societal change and is even intended to stimulate it. In most cases, how- ever, a
change in the law is the result of a change in social reality. Indeed, when social reality changes,
the law must change too. Just as change in social reality is the law of life, responsiveness to
change in social reality is the life of the law.

These changes in the law, caused by changes in society, are sometimes appropriate and
sufficient. The legal norm is flexible enough to reflect the change in reality naturally, without the
need to change the norm and without creating a rift between law and reality. For example, the
legal prohibition against possessing weapons works well, without the need for change, whether
the weapon is an antique pistol

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or a sophisticated missile. Often, however, the legal norm is not flexible enough, and it fails to
adapt to the new reality. A gap has formed between law and society. We need a new norm. For
example, the norm that the owner of a carriage owes a duty of care to a pedestrian may be flexible
enough to solve the problem of the duty of care that an automobile owner owes to a pedestrian.
However, it is not flexible enough to solve the problem of industrialization, urbanization, and
thousands of cars traveling on the streets, a situation in which proving negligence becomes more
and more difficult. We need a change in law to move from negligence-based liability to strict
liability in the context of an insurance regime. When changes occur in social reality, many of the
old legal norms fail to adapt. The tort of negligence, which can generally deal with various changes
in conventional risks, will likely prove insufficient to address an atomic risk. We would need a
formal change in the norm itself.

The life of law is not just logic or experience. The life of law is renewal based on experience and
logic, which adapt law to the new social reality. Indeed, there are always changes in law, caused
by changes in society. The history of law is also the history of adapting law to life’s changing
needs. The legislative branch bears the primary role in making conscious changes in the law. It
has the power to change the legislation that it itself created. It has the power to create new legal
tools that can encompass the new social reality and even determine its nature and character. In
the field of legislation, the legislature is the senior partner. The role of the judge is secondary and
limited.

The judge has an important role in the legislative project: The judge interprets statutes. Statutes
cannot be applied unless they are interpreted. The judge may give a statute a new meaning, a
dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without
changing the statute itself. The statute remains as it was, but its meaning changes, because the
court has given it a new meaning that suits new social needs. The court fulfills its role as the junior
partner in the legislative project. It realizes the judicial role by bridging the gap between law and
life. I noted as much in a case that addressed, among other things, the question of whether Israel’s
civil procedure regulations recognized a class action lawsuit against the state. In answering in the
affirmative, I noted: We are concerned with the existing law, which must be given a new meaning.
This is the classic role of the court. In doing so, it realizes one of its primary roles in a democracy,
bridging the gap between law and life. The case before us is a simple example of the many
situations in which an old tool does not fit a new reality, and the tool therefore must be given a
new meaning, in order to address society’s changing needs. It is no different from the many other

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situations in which courts today are prepared to give a dynamic meaning to old provisions, in
order to adapt them to new needs.

https://www.semanticscholar.org/paper/The-Judge-in-a-Democracy-
Barak/3bfaaf9e990e230fe6472c5f5ee7c81e7d0b282d

Conclusion
Although judges are required to perform many tasks during the course of legal proceedings, when
considering the 'judicial function', attention is usually focused primarily upon the way in which
(judges determine disputed questions of law) (i.e., adjudication).

In arriving at their determinations, courts are expected to be consistent with decisions in previous
cases and to provide certainty for the future. These requirements are reflected in the English
system of judicial precedent.

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Task 03

Introduction

Equity as a source of law remains as current and as vital a part of the English Legal System as
ever, although the conscientious Lord Chancellors who first gave life to the idea may wonder at
its role today.

So, the result of this was that the common law tradition of relying previous decisions gradually
brought about systematization in the application of conscience and the introduction of the idea of
equity as a body of set of rules and doctrines existing side by side with the common law.

Equitable principles in development of English law

Equity historically was an important source and it still plays a part today with many of our legal
concepts having developed from equitable principals. The word equity has a meaning of fairness
and this is the basis on which our law operates, when adding to our law. Equity developed
because of problems in the common law of which there were several: the main one being the
method by which the cases had to be started in the common law courts. This was known by
obtaining a document known as a writ. Before 1258 it was possible to ask for a writ to be drawn
up to cover any situation, but the Provisions of Oxford 1258 restricted the issue of writs for new
types of action. This meant that to start a case in the common law courts, the would-be litigant
had to be able to fit his claim into one of the existing types of writ – if this could not be done then
there was little chance of justice. To get around this technical difficulty, the judges did develop
‘fictions’ which allowed some cases to proceed. In other words, they assumed certain facts for
the case, even though those facts were not true.

The historical creation of Equity arose from the need to mitigate the harshness of the decisions
of the common law developed after 1066. Whilst the royal courts and assizes produced the
benefits of a widely available legal system applying a consistent set of rules and procedures, they
also became rigid and inflexible, ignoring justice in the quest for legal certainty. By the thirteenth
century, aggrieved litigants began to petition the Chancellor, as the ‘keeper of the king’s
conscience, in an effort to find a more just solution to their problem. As a consequence of the
growth of these petitions, the Court of Chancery developed, where decisions were made on the
basis of fairness and reason and so the notion of equity was founded. The body of rules and
principles developed by the Lord Chancellors became known as equity because they were based

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on the concepts of fairness and justice. They were applied in a special court of the Lord Chancellor
known as the Court of Chancery, which began to recognize and enforce new rights and duties
thus providing an alternative system of justice to that of common law courts.

Initially, the two court systems operated in parallel, with equity being regarded as a gloss upon
the common law. Where the law failed to provide remedy equity could operate to “fill the gap”.
However, as both systems become more developed, the situation became one of conflict rather
than assistance. Equity began to be criticized by some for its unpredictability and it increasingly
found a remedy opposing that offered by the common law. This culminated in the Earl of Oxford’s
Case (1615), in which James I decided in favor of equity as the prevailing rule in the case of
conflict.

Equity was now free to develop. It created its own set of rights and remedies, which are still in
force today. It was an equitable development, along with many other areas of property law such
as the equitable mortgage, the rules of probate, will and succession. Remedies were also created
to support these rights. The injunction has its foundations in the early development of equity. It
served then, as now, as an addition to common law award of damages.

Alongside these developments, equity also created its own set of rules, the ‘maxims of equity’, to
guide the judge in the use of his Discretion in matters of equity. Whilst one of the attractions of
equity was that it was based on the judge’s discretion and therefore flexible, the maxims led some
to criticize equity for becoming as rigid as the common law. Nevertheless, the work of the
Chancery courts expanded as equity widened its scope through the late 1700s and 1800s. By the
middle of the nineteenth century, it was realized that the two systems could no longer operate as
separate bodies and the review of the system was needed.

This reform was achieved by the Judicature Act 1873-75. This legislation provided for procedural
fusion of the two systems into one court hierarchy, which is the basis of the modern divisions of
today’s High Court. Rather than eliminating equity, the Acts it is submitted, strengthened and
confirmed its place in the future. A litigant could now bring his proceedings in one court which
would apply both the rules of common law and equity and Judicature Acts confirmed that in the
case of conflict, equity would prevail.

It would be easy to assume that having provided these foundations, the importance of equity as
a developing body of law ceased after 1875. However, this is clearly not the case when one
examines the many twentieth century developments of equity. The rights and remedies created
before 1873 continue to operate today. Furthermore, they have been refined added to by modern

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judges and legal developments. The now established principle of “promissory estoppel” in
contract owes its existence to the judgment of Lord Denning in the High Trees case10. The
contractual license, constructive trust and doctrine of part performance are all creations of the
judge’s equitable discretion. The rights of the deserted spouse, an essential part of modern
matrimonial property law are creations of equity, reinforced by statute.

The development of new and more complex remedies has been as active as that of rights. The
order of specific performance is still vital. The injunction is perhaps more widely used than ever
before, having a place in many areas of modern, such as intellectual property rights, as well as
more traditional role. Anton Filler orders and Merava injunctions have only been created in the
last thirty years and they are now an essential part of many legal proceedings11. The appointment
of receivers and orders to account are similarly important parts of modern legal practice which
owe their existence of equity.

So, the significance of equity in the modern legal system can be clearly illustrated. However, one
concept that has perhaps changed is the historic notion of equity as flexible and fair. Whilst the
reasoning behind many modern developments is the need to provide a solution, which is
appropriate to the facts and the changing demand of society, the wealth of guidelines that go with
the discretion can be as rigid as any common law rules. For example, to be granted an injunction
one must satisfy the complex requirements of the American Cyanamid Rules12. Anton Filler
orders and Merava injunctions have been criticized by some judges as harsh and draconian and
a set of rigid procedures aimed at safeguarding against abuse has developed alongside these
two injunctions.

https://www.lawyersnjurists.com/article/development-of-equity/

Development of equity law

Equity came into existence during the 13th century. At that time the courts of law had froze the
types of claims they would hear as well as the procedure governing the hearing of those claims.
The range of claims that would be heard became narrow and the processes to bring the actions
to court became so technical with jurors often being bribed. As a result of these changes plaintiffs
with meritorious claims were often denied relief.

To attempt to counteract this discrepancy remedies could be obtained by petitioning the King,
who had residual judicial power to deal with such matters. The King began delegating the function
of dealing with such petitions to the Chancellor. The post of Chancellor at this time was usually a

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clergyman and King’s confessor. The Chancery evolved into a judicial body known as the Court
of Chancery, until by the end of the 15th century the judicial power of the Chancery was fully
recognized. The Court of Chancery was in effect developed as a court of conscience to counteract
the defects that existed in the common law system. The rules of equity varied from Chancellor to
Chancellor until the end of the 16th century.

As equity developed it began to conflict with common law. Litigants used equity to their advantage
often seeking an equitable injunction prohibiting the enforcement of a common law order. If a
common law judgment was enforced in disobedience of a common injunction, then the person
enforcing the judgment could face imprisonment.

In the Earl of Oxford’s Case (1615) the Court of Chancery issued a common injunction prohibiting
the enforcement of a common law order. The matter was referred to the Attorney General Sir
Francis Bacon when no resolution could be reached between the 2 courts. Sir Francis upheld the
common injunction and stated that ‘in the event of any conflict between the common law and the
law of equity, equity would prevail’. Lord Ellesmere pointed out in the above case because there
was a need for a Chancery. He stated

‘Men’s actions are so diverse and infinite that it is impossible to make any general law which may
aptly meet with every particular and not fail in some circumstances. The office of the Chancellor
is to correct men’s consciences for frauds, breaches of trust, wrongs and oppression of what
nature so ever they be, and to soften and mollify the extremity of law.’

By the 17th century only lawyers were appointed to the office of Chancellor. From 1529 onwards
when Sir Thomas Moore was appointed as Chancellor records of proceedings in Courts of
Chancery were kept which led to the development of equitable doctrines. Prior to his appointment
no such records were kept and decisions made by the Chancellors were discretionary and erratic.

By the beginning of the 19th century the Court of Chancery had become a court of equity. In the
case of Gee v Pritchard Lord Eldon made the comment that

The doctrines of the Court of Chancery ought to be well settled, and made as uniform, almost, as
those of the common law, laying down fixed principles, but taking care that they are to be applied
according to the circumstances of each case. I cannot agree that the doctrines of this court are to
be changed by every succeeding judge. Nothing would inflict on me greater pain in quitting this
place than the recollection that I had done anything to justify the reproach that the equity of this
court varies like the Chancellor’s foot.

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Legal System

The primacy of equity as stated by Sir Francis was later enshrined in the Judicature Act 1873 s25
which also joined the courts of equity and the courts of common law into one under the title of the
Supreme Court. The Supreme Court was divided into 2 forming the High Court and the court of
Appeal. The High Court was further divided under 5 different headings giving rise to the Chancery
Division, King’s Bench Division, Common Pleas Division, Exchequer Division and the Probate,
Divorce and Admiralty Division.

The central feature of these reforms was that every court would now possess the power and have
the duty to decide cases in line with common law and equity. Where there is a discrepancy
between the common law solution and an equitable one the precedent of the Earl of Oxford’s
case still applies meaning that equity will be paramount in the decision-making process. The
Supreme Court Act 1981 s49 has embodied this principle and instructed that

(1) Every court exercising jurisdiction in England and Wales in any civil cause or mater shall
continue to administer law and equity on the basis that wherever there is any conflict or variance
between the rules of equity and the rules of common law with reference to the same matter, the
rules of equity shall prevail.

Before the common law courts and the Court of Chancery became one common law actions could
only be commenced by means of a writ whereas actions in the Court of Chancery were
commenced by an informal bill of complaint and the process begun by the use of a subpoena.
Chancery hearings were informal and were not restricted to being able to sit at certain times as
was the case with the Common Law Courts. Hearings could even take place within the
Chancellor’s house.

It would appear that common law and equity were effectively fused together by the Judicature
Acts. Ashburner’s view of this was

The two streams of jurisprudence though they run in the same channel, run side by side, and do
not mingle their waters.

Although equity and common law are fused together in that a court is entitled to award equitable
remedies or common law remedies or a combination of both within the same court there are still
some areas of law where the distinction between legal ownership and equitable ownership still
thrive. One such area is in the formation and management of trusts.

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Legal System

Before the introduction of equity into the legal system persons wishing to dispose of their property
by way of a trust were faced with the difficulty or passing ownership to their intended beneficiaries
without giving them the property outright. Under the common law system, the transfer of the
property into the hands of the trustees could only be read as giving full title to the trustees and no
account could be given for the concerns of the beneficiaries. The whole process of the trust
system is firmly rooted in equity with the trustees holding the land on trust for the beneficiaries.

In order that the trustees can invest or deal with any of the property the ownership of the property
transfers to them under common law rulings and equity creates a beneficial interest for the
beneficiaries to ensure that when the beneficiaries reach the age of maturity as dictated by the
trust document that the full title of the property becomes vested in them. The essential element
that the trustees have to be aware of is that despite the fact that they have the power to invest or
sell trust property that they are in fact acting on behalf of the beneficiaries. Trustees who make
unwise investments are breach the trust can and often are made to compensate the beneficiaries
for any losses incurred by their actions. In these matters’ equity will usually favor the beneficiaries.

Although there is an apparent fusion of common law and equity there is still a difference in the
way in which common law remedies and equitable ones are administered. Common law remedies
are available as of right whilst equitable remedies are discretionary and awarded at the will of the
court. Equitable remedies can also be affected by the behavior and position of the party claiming
the remedy. As the courts are allowed to take into account the conduct of the party seeking the
award, they can decide not to award an equitable remedy where it considers their conduct should
deprive them of such an award.

Problems arose in the case of Tinsley v Milligan where the question raise was whether the plaintiff
could assert a claim to an equitable interest in land by way of a resulting trust where she had
acted illegally. The maxim as set down by equity that a person seeking to assert an equitable
entitlement must come with clean hands prevented the plaintiff from asserting her right. Under
common law a plaintiff would be entitled to assert their common law right to ownership provided
that they did not need to rely on their illegal conduct to establish title. As the plaintiff in this case
did not need to rely on their illegal conduct to establish title her claim succeeded.

To assist the court in making equitable decisions certain maxis of equity have been established.
These are not binding rules and do not provide guidance in every situation. They are intended as
illustrations based on principles established in recurrent themes.

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Legal System

One of the maxims of equity is that it will not suffer a wrong without a remedy. This is of particular
importance in trust law, where without the influence of equity the beneficiaries may lose the benefit
assigned to them by way of the trust document. Another maxim was that equity follows the law,
although as has been previously stated statute favors equity as prevailing when the 2 are at a
variance to each other.

Further maxims exist in the following circumstances. Where the equities of the parties are equal
one with a legal right and the other an equitable right the common law rules will prevail. Where
both only possess equitable rights the first in time right to the item prevails.

It was also laid down that he who seeks equity must do equity. This means that the person seeking
the equitable relief must act fairly towards the person he is seeking the relief from. As mentioned
above anyone coming to equity must come with clean hands. Any illegality or inequitable conduct
could affect their entitlement to an equitable remedy.

Failing to act swiftly could also prevent a plaintiff from asserting his equitable rights. Where the
division of property is not clear equity would dictate that the property is divided in equal shares.
When making equitable decisions the court will look to the intent of the parties and will regard that
as done that which ought to have been done. There is an imputed intention in equity to fulfill
obligations. Decisions made on the basis of equity are in persona which enforces decisions by
means of a personal order against the defendant.

The types of equitable remedies that can be awarded by the courts include injunctions, specific
performance, rectification and rescission. With an injunction the courts can either stop the party
from doing something or require them to do something. An order of specific performance requires
one of the parties to a contractual agreement to complete their part of the contract. Usually awards
of this kind relate to specific articles such as land and will not be awarded where the court cannot
supervise the operation of the order. Rectification is concerned with the alteration of contractual
documents. An order for rescission is issued with the intent of returning the parties in a contractual
agreement to the position they were in before having entered into the agreement. This can be
distinguished from the common law award of damages. In an award for damages the intention of
the court is to put the parties in the place they would have been in had the contract been
completed.

It can be seen from the above that equity was introduced to fill the void that was lacking in common
law. Under the old system of common law from the 13th century until the courts combined there
was no leeway for the courts to order specific performance or injunctions. The common law

25
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system functioned merely on the awarding of damages and so therefore if the plaintiff wanted to
order someone to do something or to stop doing something but could not show that any specific
monetary loss would result from the action of the defendant then the common law courts did not
have the power to deal with such issues.

Although equitable remedies are awarded without reliance on legislation for their enforcement
there are many ways in which the aims of equitable remedies mirror those of the common law.
Under common law the aim is to compensate the plaintiff for any financial loss that they have
incurred as a result of a wrong being done to them. Under equity the courts are addressing the
situations where monetary compensation may not be appropriate. An injunction may prevent a
future monetary loss for the plaintiff. An example of this would be an injunction preventing
someone from building a factory on land adjacent to that of the plaintiff. If the factory is allowed
to be built the knock-on effect could result in a depreciation of the value of the property of the
plaintiff. Similarly, an injunction against a trustee preventing him from dealing with the assets of
the trust in a certain way might prevent the beneficiaries from a financial loss on their inheritance.

It could be viewed in some circumstances that equitable remedies may prevent the need for a
future claim under common law. This would particularly be the case in the issuing of an injunction
as mentioned in the paragraph above. Similarly, an order for specific performance could prevent
a claim in the future for breach of contract. Frequently the plaintiff would prefer that the contract
was carried out as originally agreed rather than be awarded damages for the non-performance of
the contract. This could well be the case where the order of specific performance centers around
building work being undertaken on the plaintiff’s property. Although damages would compensate
the plaintiff for the work not being completed the plaintiff would still need to employ someone else
to complete the contract.

Although the principles of equitable remedies can be widely different to common law remedies
they are not totally incompatible with common law remedies. One of the common aims of both is
a restoration of natural justice either by way of monetary compensation, where no other method
would suffice, or by way of equitable remedies or occasionally by the use of both. The conclusion
can therefore be drawn that equity and common law remedies are working together to establish
natural justice for the plaintiff and that although they have different remedies for achieving that
aim the end result is that the plaintiff has a greater chance of getting the award best suited to their
situation.

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On occasions it may seem that they are working against each other. This might particularly be
the case in trust law where the equitable interests of the beneficiaries supersede that of the
trustees. This is more the case in the instance of constructive trusts that have been created as
the result of mutual wills. In such cases as these the survivor of the deceased might only have a
life interest in their own property as they have agreed in the mutual will to hold the property on
trust for the beneficiaries However, if equity did not intervene in this area, then the surviving
testator of a mutual will could alter their will upon the death of their partner and totally disinherit
the beneficiaries that the deceased testator specifically wanted to inherit.

https://www.lawteacher.net/free-law-essays/equity-law/history-of-equity-law.php

Conclusion
Equity is understood by others as a better form of justice due to giving a specific judgement.
Equity can be understood generally as justice and fairness. Arguably this can only be achieved if
there is certainty within the law, as without the strict rules of law there would not be universal
justice and fairness.

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Task 04

Introduction

Laws are generally based on the moral principles of a particular society. Some
points of distinction may be brought out as follows:

a) Laws regulate external human conduct whereas morality mainly regulates internal
conduct.
b) Laws are universal; morality is variable.

Relationship Between Morality and the Law

Voluntary euthanasia is when a person with a terminal (incurable) or serious progressive illness
asks for their life to be ended by a doctor, or carer, which can include a family member or friend.

From the ethical perspective, euthanasia raises many important issues including the right to life,
the right to liberty, the avoidance of unnecessary pain, the appropriate allocation of medical
resources, and the rights and duties of doctors. Other relevant considerations include the
improving standard of palliative care and the “slippery slope” argument. The central arguments
for and against euthanasia are evaluated against the background of the leading contemporary
moral theories. This book seeks to cut through the rhetoric that has become a feature of the
debate and asks whether there is a sound reason for denying the wishes of individuals who
express their wish to die

Law is essentially a set of rules and principles created and enforced by the state whereas morals
are a set of beliefs, values and principles and behavior standards which are enforced and created
by society. Legal and moral rules can be isolated with the former being created by the legislative
institution of parliament; whereas the latter have evolved with and through society and are the
standards which society in general accepts and promotes. Some laws mirror the majority of
society’s moral view, for example, that murder is wrong but the introduction of same sex marriages
is seen by some people as morally wrong and society is divided.

The study of euthanasia elicits the vast sway of different opinions which exist about the moral
right and wrong of the taking of a human life in order to ease pain and suffering. Moral arguments
abound for the legalization of euthanasia and also for it remaining illegal in English law. This area
of law is one in which the extent to which the law should intervene in peoples’ lives is relevant.

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Euthanasia is also fertile ground for discussing the extent to which the law should and does
enforce moral values. It is such an emotive topic because it concerns the pain and suffering of
family members and also brings into account religious views and the doctor’s oath.

The case of R (Pretty) v DPP fn1 has aroused great interest in the country. Diane Pretty suffers
from an incurable terminal illness and has expressed a desire to die at a time of her choosing.
Libertarian advocates of the autonomous right of people to choose their own destiny and end their
lives how and when they want to, identify with Mrs Pretty. They argue that her wish is her own
choice and violates no one else and is in everyone’s best interest. Mrs Pretty sees death as the
preferred option and since it will eventually happen it is better to legalese it and regulate it. In the
eyes of the victim and family death may not be such a bad thing.

The opposing view is taken by the religious people who see Mrs Pretty’s actions as against God’s
will and that only God can decide the time to die. The religious element says that God has a plan
for everyone and suffering may be part of that plan as illustrated by John Paul fn2. They argue
that euthanasia undermines the sanctity of life. The people who oppose euthanasia point to it
being the slippery slope, arguing that it may encompass people who aren’t terminally ill. They are
worried that unscrupulous relatives or friends will take advantage if euthanasia is legalized and
pressure someone into thinking that euthanasia is in that person’s best interests when in fact the
relatives/friends are possible keen to get their hands on their inheritance. The very fact of
legalizing euthanasia would mean that sick people are degraded and seen as worth less than
other lives. Euthanasia may not be in the sick patient’s best interest and it may have long lasting
effects on family members who are genuine in their concern for the patient. So, there are moral
issues around these third party rights who may not want to their loved ones to pass away in this
manner and whose voice should be heard.

There are three main theories which deal with law and morality. Firstly, the liberal view known as
the Harm to others; principle expounded by John Stuart Mill in 1859.fn3 Mill thinks that the only
purpose for which power can be rightfully exercised over any member of a civilized society against
his will is to prevent harm to others. Mill believed that the law should not be used to enforce moral
principles on society but to protect harm to its citizens. Preventing someone from harming himself
is excluded by this harm to others principle. Criminal offences such as murder, murder and non-
fatal offences against the person are examples of the type of harm which Mills thinks the law
should enforce. The Wolfenden Report said that the purpose of the law is to preserve decency
and protect people and not to interfere in private lives. fn4

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Legal System

The second theory is known as the Moralistic view, harm to society principle which was put forth
by Lord Devlin, 1950-60. fn5 His view is that a recognized morality is essential to the very essence
and being of society. He thought that individual liberty and freedom should be curtailed in order
to protect the fabric of society. Devlin said that society may use the law to preserve morality in
the same way that it uses the law to safeguard anything that is essential to its existence. He
envisages morality in an objective fashion seeing it as a common morality shared by all in society.
An example of a law illustrating this theory is the defense of consent in non-fatal offences, R v
Brown & Others. fn6

The final theory is the most modern and is the Paternalistic view, harm to self and others view as
put forward by Professor Hart in the 1960s.fn 7 His theory is that the law should only intervene in
the private lives of citizens to prevent harm to others and harm to oneself. He did acknowledge
that there was a difficulty in defining harm but did acknowledge that it did not include moral harm
to oneself. An existing law illustrating this theory is the law which prevent methods of prostitution.
The Paternalistic view focuses very much on the individual.

Having examined these theories, we can now reflect on how they interact with euthanasia.

The liberal harm to others theory suggests that euthanasia should not be illegal; moral harm to
society suggests that euthanasia should remain illegal and the paternal view harm to self-view
suggests that euthanasia should be illegal. It is interesting to note that only one of the theories
and the oldest one at that supports the legalization of euthanasia.

In law euthanasia has no special position and people who carry out euthanasia are treated as
committing murder or manslaughter. However, the Suicide Act fn7 makes a specific offence of
criminal liability for complicity in another’s suicide whereas suicide itself is legal.

The arguments which resurfaced in the Dianne Pretty case all revolve around morality and the
law. Mrs Pretty wanted her husband to end her life without being prosecuted for aiding and
abetting suicide. Her case led to a high profile legal and public debate on the issue as her husband
first applied to the domestic courts ending at the House of Lords, and then to the European Court
of Human Rights for judicial review of the refusal to give him immunity from prosecution. If the
case had been successful, it would have effectively struck down the legal ban on assisted suicide
and legalized euthanasia. Mrs Pretty was unsuccessful because the domestic courts in
recognition of the complex moral considerations at stake, deferred to the democratic will of

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parliament as enshrined in the legal text. The European Court of Human Rights applied the EU
equivalent, the Margin of Appreciation, and rescinded from passing judgment on the issue in
2002.

One of Mrs Pretty’s contentions was that her human rights were being breached and in particular
she relied on the right to life fn article 2 fn8 and that she should be protected from inhuman or
degrading treatment fn art 3 fn 9. In addition, she claimed that the right to respect for private life
fn art 8 fn10 had been breached. There is a definite moral overlap with each aspect of the human
rights legislation which Mrs Pretty is seeking to rely on. The House of Lords said that the right to
life article could not be construed as conferring a “right to die” and consequently the state could
not be required to sanction actions intended to terminate life in order to protect Mrs Pretty from
the inhuman or degrading treatment to which she maintained that the law on assisted suicide
subjected her. Additionally, the right to respect for private life had to be exercised “in accordance
with the law” of the state concerned. The Court acknowledged that states were entitled to regulate
activities which were detrimental to the life and safety of others by introducing legislation. It is
important to note that towards the beginning of their deliberations the House of Lords noted that:

“In discharging the judicial functions of the House, the appellate committee has the duty of
resolving issues of law properly brought before it, as the issues in this case have been. The
committee is not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter” fn
11 para 2

The House of Lords has acknowledged that the case before it concerns issues which are of a
moral nature, but that the judicial functions of the court are to enforce the law as it stands and not
to impose any moral viewpoints or to allow its own moral value to affect its decision. This shows
how the law and morality are intertwined in this instance but that the Court’s function is not to
interpret the law as they might wish it to be (assuming any of their Lordships agreed with
euthanasia) to reflect their moral stances but that the law must be interpreted as laid down by UK
law and in conjunction with European law.

In their editorial Doyal and Doyal ask “should she [Diane Pretty, who has motor neurone disease]
not be able to invite [her doctors] actively to end her life. Fn 12 The right to total personal autonomy
is a cornerstone of the pro-euthanasia camp, but from the point of view of opponents, there is a
fundamental problem with this approach. This approach sees us as being isolated individuals, like
bricks lying across a builder’s yard, but with no interlocking relationship, so whatever happens to
one brick has no impact on any others. However

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Legal System

We aren’t like this. We are more like bricks in a house, where we have close relationships and
responsibilities to those around us, friends and family, and we are connected to society as a
whole. Our autonomy is balanced by our responsibilities. I don’t exert my right to drive to a
supermarket at 150 mph because I accept my responsibility not to endanger others.

In his rapid response Fergusson argues that euthanasia is unnecessary,1-2 but suppose that one
person still wanted it. For that to happen the law would have to be changed from one that
protected everyone’s life absolutely to one that left vulnerable people unprotected. In this case
the one person ought to waive their right to autonomy because of their responsibility to others.

There is another problem with autonomy: for a choice to be valid it has to be free. Sadly, our
society and, sometimes, families don’t value old people; they are often made to feel that they are
in the way and not useful. Tragically, this is often how the older generation feel about themselves.
They know about the NHS’s limited resources and may feel guilty about using them up. If
euthanasia was legal, they would inevitably feel pressured to do the decent thing and die, to stop
using up others’ resources, be it a hospital bed or the children’s inheritance.

Euthanasia is not the answer. Rather, we need to provide meticulous palliative care and by so
doing show that people are valued, by our profession and our society.

The Pretty case kept the euthanasia debate in the public domain and on 13 May 2006 after
previous attempts to introduce a private member’s bill, the Assisted Dying for the Terminally Ill
Bill, the House of Lords finally defeated it. There are some interesting comments which emerge
from the debate, for instance from Lord Carlisle of Berriew who said that

“Everybody in your Lordships’ House knows that those who are moving this Bill have the clear
intention of it leading to voluntary euthanasia. That has always been the aim and that remains the
aim now. The Bill introduces for the first time into this country the concept that of doctors
abandoning therapy for deliberately causing a person’s death. The fact that a person in law gives
the instrument of death to another person who injects still includes them as the person causing
the death. I and many others find that-whether religious or not religious-morally objectionable and
I include in that moral objection the vast majority of physicians and general practitioners, the
Disability Rights Commission and, as I understand it, the Royal College of Nursing” fn 13- Times
on Line 13 May 2006 “The religious and the righteous unite in a moral crusade”

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Legal System

Lord St John of Fawley said that “the life of a great society depends on a common possession of
moral principles. If those principles disappear the society disappears. That is why people are so
concerned about this at a time of very great moral change, that one of the fundamental pillars of
our society is being shaken.”

Lord St John Fawley seems to be suggesting that society depends on commonly shared morality
but that is not the case with the feelings of people towards euthanasia. Rather there is a great
divergence of moral views on the topic and people in favor or against do not all have or share the
same moral stance for their viewpoint. His Lordship seems to be suggesting that if the law is
changed to permit assisted suicide or voluntary euthanasia, then the fabric of society will crumble.
He clearly sees that one of the functions of the law is to uphold the moral principles of society as
they exist at the moment but he seems to suggest that anyone who is in favor of the proposed Bill
does not share his viewpoint of what is moral.

Rowan Williams Archbishop of Canterbury made the point that opposition to the principle of the
Bill is not reserved by people of religious conviction adding that it would be a lazy
counter0argument to suggest that such opposition can be ignored because it emanates only from
those whose view of the world is not universally shared. He pointed out that the effect of the
proposed legislation was to make certain kinds of life not worth living in the eyes of the law. He
maintained that the security of the vulnerable would be threatened in another way by drastically
altering the relationship between patient and physician.

Another very important thread to the debate is the position of doctors who would be permitted to
assist people in assisted suicide or voluntary euthanasia if the proposed Bill was passed. Doctors
take a Hippocratic oath which states that they have a duty to save life and not to accelerate its
end. Apart from the proposed Bill resulting in doctor’s breaking such an oath, some doctors are
also personally and morally opposed to the legalization of voluntary euthanasia. Thus, their moral
dilemma should be taken into account but if the Bill was passed then the law would in subsume
their moral viewpoints unless some opt out for doctors and other medical practitioners could be
written into the Bill. If indeed such an opt out was included in the Bill, then that would be an
instance where the law respected and reflected the autonomous right of a medical practitioner to
retain their moral view point which would be superior to the law.

Some people may argue that by rejecting the proposed Bill, as a society, we felt it was morally
permissible to permit someone to suffer a very serious and debilitating illness in the interests of
the preservation of life. However, the notion that the sanctity of life should be preserved is still an

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ideal held by many who insist on prolonging life at all costs. The medical profession despite its
obligation to heal often places the sanctity of life above the notion that healing might in fact involve
allowing the end of life as Mrs Pretty wanted. Is it so wrong to assist another individual to die even
where that individual is being subjected to an intolerable amount of pain and suffering? This is
the argument put forward by the proponents of the proposed Bill who see the law as lagging
behind the current morality within society which they maintain contains a drive towards legalizing
voluntary euthanasia. The result is that people who think that the current law is failing their
personal autonomy to live their lives in the way they think fit within the law and then to end their
lives as they wish are being driven to seek assistance in countries where euthanasia is legal such
as Switzerland where the renowned Dignitas clinic assists such people.

Due to the fact that so many people hold varying moral viewpoints on the subject of euthanasia
and as it impacts on so many people

https://www.lawteacher.net/free-law-essays/medical-law/relationship-between-morality-and-the-
law-medical-law-essay.php

Law and Morality

If this union of primary and secondary rules represented the entirety of Hart's legal philosophy,
those who claim that Hart's legal positivism has nothing of interest to say about the relationship
between law and morality would be correct. They would also be correct in claiming that such an
analysis is grossly deficient. However, Hart does have more to say about this subject. Much of
what he says is perceptive and illuminating.

Hart is a legal positivist, but he is a critical moral philosopher as well. Legal positivism generally
means that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of
morality, though in fact they have often done So It is worth noting that Hart does not subscribe to
all the theses commonly attributed to legal positivism. He does not assert that laws are simply a
product of sovereign command, or that moral judgments cannot be established as statements of
facts can, by rational argument, evidence or proof He does not maintain that a legal system is a
closed logical system in which correct decisions can be deduced from predetermined legal rules
by logical means alone.

It should be noted that Hart does take morality seriously. Hart stated that law and morality are
very close, though not necessarily related. He is deeply sympathetic to what he calls "the core of
good sense of natural law" and believes that law should continually be subject to moral scrutiny.

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Legal System

Hart endorses the formal principle of justice as desirable in any legal system. This basic principle
of fairness emphasizes that laws should treat like cases alike, and different cases differently. This
constancy is necessary to give moral legitimacy to a legal order. Now one should be careful not
to put too much weight on this principle, as the commentator Frankena perceptively reminded us
through the following example. The mad king of Transylvania had just called all of his subjects
together. He showed them a huge vat of acid, which, if one were to jump into it, would cause
instantaneous death. He ordered all of his subjects to jump into the vat and then jumped in himself.
The formal principle of justice was adhered to; yet the principle did not successfully ground a
moral system. 9 Material principles were clearly needed as well.

Impartiality in rule application is a moral standard which, according to Hart, is necessary in a legal
system. Thus, any judge applying a particular legal rule is expected to do so uninfluenced by, to
use Hart's words, "prejudice, interest, or caprice." Once again, however, the notion of impartiality
will not take us too far down the road to morality. Hart himself noted "though that most odious
laws may be justly applied, we have, in the bare notion of applying a general rule of law, the germ
at least of justice. This is not the same as the formal principle of justice since the judge could
show adherence to the principle of formal justice and yet be influenced by "prejudice, interests or
caprice."

Hart holds that law is an instrument of social control. This means that the rules of law must satisfy
certain conditions if they are to properly achieve this goal. For instance, citizens may reasonably
expect that the rules of law will not be retroactively applied. A principle of fairness is involved

here. Citizens should have both the ability and opportunity to obey the law. So, the principle of
formal justice, a principle of impartiality, and the principle of fairness are all built into Hart's concept
of law. This is a moral beginning, but only a beginning.

It is appropriate now to turn to a crucial concept in understanding Hart's legal philosophy and its
moral dimension. Hart holds that one can look at a legal order from two different perspectives.
First, there is the external point of view. When one looks at a legal order from an external

point of view, one observes how members of a different society act with respect to its legal system.
The' observer is outside the legal system. So, when he or she observes that people in the system
regularly obey the law, observable regularities of behavior can be noted and recorded. The
observer is in the role of the social scientist, dutifully recording the behavioral patterns of the
individuals in society. It is important to recognize that the observer can explain what people are
doing within the system, but he or she cannot explain why they are doing it. The observer can

35
Legal System

note that the citizen has obeyed the law, but can never ascertain whether the citizen believes that
he or she has a moral obligation to obey that law.33 It is as if the observer is looking at the legal

system through a one-way mirror.

Hart believes that to determine whether a citizen believes he or she has a moral obligation to
obey the law, the system must be viewed from an internal point of view.34 The internal point of
view is applied by one who is a member of a legal system and accepts it as a legitimate legal
system. The internal point of view differs from the external point of view in that it offers one the
opportunity to understand why citizens believe the law should be obeyed. Hart reiterates that it is
not necessary in applying the internal point of view that one obeys the law for moral reasons.
Clearly, most people sometimes stop at stop signs not because it is the right thing to do, but
because there might be a police officer lurking nearby. Nevertheless, the most stable and well-
ordered legal system will be one whose citizens and public officers generally apply the internal
point of view for moral reasons. Hart in this context wrote:

What is necessary is that there should be a critical reflective attitude to certain patterns of behavior
as a common standard, and that this should display itself in criticism (including self-criticism),
demands for conformity, and in acknowledgements that such criticism and demands are justified,
all of which find their characteristic expression in the normative terminology of "ought," "must,"
"should," "right," and "wrong.”

Hart does believe that law and morality have a very close relationship. Individuals often use moral
language in explaining the justification for obeying the law. And public officials use moral language
to explain and justify why they legislate, enforce, and adjudicate the law.

There is more. Hart believes that there is a minimum content to natural law theory that a legal
system must incorporate. Hart wrote: We have, indeed, insisted that in all moral codes there will

be found some form of prohibition of the use of violence, to persons or things, and requirements
of truthfulness, fair dealing, and respect for promises. These things, granted only certain very
obvious truisms about human nature and the character of the physical world, can be seen in fact
to be essential if human beings are to live continuously together in close proximity; and it therefore
would be extraordinary if rules providing for them were not everywhere endowed with the moral
importance and status which we have described. It seems clear that the sacrifice of personal
interest which such rules demand is the price which must be paid in a world such as ours for living
with others, and the protection they afford is the minimum which, for beings such as ourselves,

36
Legal System

makes living without others worthwhile. These simple facts constitute . . . a core of indisputable
truth in the doctrines of Natural Law.

Hart's version of natural law is empirical. His position is based on a theory of human nature which
believes in certain truisms. For example, Hart believes that one truism of human nature is that the
overwhelming majority of human beings wish to survive; in other words, they would rather live

than die. If we wish to survive, it is imperative that a society be developed which will help ensure
survival. Hart believes there are five features of the human condition which sometimes work
against survival, and the legal system must take these into account.

First, there is the feature of human vulnerability. Human beings can be harmed, and it is up to the
legal system to develop appropriate laws prohibiting one from harming another. Second, there is
the Hobbesian notion of approximate equality. All humans can be relatively equal in power and
intelligence since they can form alliances to defeat opponents. As a result, we have to
compromise our desires and settle our conflicts of interest peacefully. For Hart, this is the core of
both legal and moral obligation Hart expressed this view in the following passage:

Even the strongest must sleep at times and, when asleep, loses temporarily his superiority. This
fact of approximate equality, more than any other, makes obvious the necessity for a system of
mutual forbearance and compromise which is the base of both legal and moral obligation. Social
life with its rules requiring such forbearance is irksome at times; but it is at any rate less nasty,
less brutish, and less short than unrestrained aggression for beings thus approximately equal.

Third, Hart believes in the truism that human beings possess at best a limited altruism. Both law
and morality force us to look beyond ourselves and live together peacefully with others in society.

Fourth, Hart believes that the concept of limited resources governs our actions. We simply cannot
have everything we want. Law is necessary to adjudicate competing claims. It is also necessary
to institute the concept of property and provide for its protection. Thus, through law one will be
able to keep what he or she is legally entitled to possess.

Fifth, Hart believes that the idea of limited understanding and strength of will is important to any
society. The law protects us from others and ourselves through its coercive framework. Of course,
the entire notion of paternalism is controversial in contemporary legal philosophy. How far

the government has a moral right to have paternalistic laws is difficult to ascertain, but Hart seems
to allow for some degree of paternalism.46 Hart concluded the discussion of these five features
of the human condition by noting:

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Legal System

The simple truisms we have discussed not only disclose the core of good sense in the doctrine of
Natural Law. They are of vital importance for the understanding of law and morals, and they
explain why the definition of the basic forms of these in purely formal terms, without reference to
any specific content or social needs, has proved so inadequate. So, Hart asserts that there is a
core of morality in every legal system. Thus, to seriously maintain that legal positivism is a priori
unsympathetic to all varieties of natural law is to make an unsubstantiated claim.

It is sheer nonsense and a gross misrepresentation of legal positivism to maintain that legal
positivism holds that law and morality do not interact with each other and that law is not concerned
with morality. This is true of criticisms of all the legal positivists, but it is especially true in the case
of Hart. Hart carefully explained that there is a close relationship between law and morality,
emphasizing that:

The law of every modem state shows at a thousand points the influence of both the accepted
social morality and wider moral ideals. These influences enter into law either abruptly and
avowedly through legislation, or silently and piecemeal through the judicial process. In some
systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate
principles of justice or substantive moral values; in other systems, as in England, where there are
no formal restrictions on the competence of the supreme legislature, its legislation may yet no
less scrupulously conform to justice or morality. The further ways in which law mirrors morality
are myriad, and still insufficiently studied: statutes may be a mere legal shell and demand by their
express terms to be filled out with the aid of moral principles; the range of enforceable contracts
may be limited by reference to conceptions of morality and fairness; liability for both civil and
criminal wrongs may be adjusted to prevailing views of moral responsibility. No "positivist" could
deny that these are facts, or that the stability of legal systems depends in part upon such types of
correspondence with morals. If this is what is meant by the necessary connexon of law and
morals, its existence should be conceded.

Can anyone possibly doubt that Hart recognizes the interrelationship between law and morality
when one considers this passage and the other ways in which it has been seen that Hart clearly
believes that law and morality are closely related? But Hart refuses to take the final step and find
that morality is a necessary condition of legal validity. He refuses for two reasons.

The first reason is practical; Hart is sympathetic to the empiricist tradition which has been
prevalent in British philosophy for the past several centuries. 50 He believes that we can obtain a

38
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better understanding of law in society by developing a philosophical position consistent with the
way law actually operates in the real world. In this sense Hart is a descriptivist, not a prescriptivist.

Hart explains that we can more accurately describe a legal system if we take a wider view of what
the law is. This view includes all laws which are upheld under the ultimate rule of recognition,
even though some of these rules may be immoral. This view can be contrasted with a narrower
concept of law as espoused by most natural law theorists, which holds that immoral rules, even if
they are authorized by the legal system as a primary or secondary rule, are not to be considered
as law at all. Hart explained:

It seems clear that nothing is to be gained in the theoretical or scientific study of law as social
phenomenon by adopting the narrower concept: it would lead us to exclude certain rules even
though they exhibit all the other complex characteristics of law. Nothing, surely, but confusion
could follow from a proposal to leave the study of such rules to another discipline, and certainly
no history or other form of legal study has found it profitable to do this.

On this point Hart asserted that it is more important for a philosopher to offer an accurate
description of a legal system than to prescribe a method of invalidating laws on moral grounds.
Hart believes that there must be a strong correlation between a philosophical analysis of law and
the way law actually operates in the real world. Thus Hart rejects any such "law in philosopher's
heaven" model.

The second reason for Hart's refusal to find that morality is a necessary condition for legal validity
is moral. Hart stated: So long as human beings can gain sufficient co-operation from some to
enable them to dominate others, they will use the forms of law as one of their instruments. Wicked
men will enact wicked rules which others will enforce. What surely is most needed in order to
make men clear sighted in confronting the official abuse of power, is that they should preserve
the sense that the certification of something as legally valid is not conclusive of the question of
obedience, and that, however great the aura of majesty or authority which the official system may
have, its demands must in the end be submitted to a moral scrutiny. This argument is a moral
argument. Hart stated that it is a mistake to maintain that the enactment of a law is definitive with
respect to the moral question whether the law ought to be obeyed. Hart emphasizes that law is
morally relevant; it is not morally conclusive. Laws exist because they meet legal structural
standards necessary for a particular social rule to be called a law. Once enacted the law is still
subject to moral scrutiny. If a law is immoral, a question arises as to whether the law ought or
ought to not be obeyed. Numerous factors must be considered in deciding on a course of action.

39
Legal System

Is the law horribly immoral? Is change likely by going through official channels? Will others support
disobedience? Is punishment likely for disobedience? There are no universally accepted
solutions.

https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1941&
context=mulr

self-criticism of relations with law and society in the light of

morality
In recent years the connections between moral and values and social relations have been
investigated by various analysts. In their research on abortion attitudes, Harris and Mills (1985)
found that vahie priorities were established in patterns which were interwoven with social
conditions, supporting their theoretical point that society is more than the ethical context for
morals. Creeland and Granfield 1986 explore connections between value assumptions and social
analysis in their examination of the ways in which the individualism and rationalism of middle elms
Protestant morality are used in W. I. Thomas' social theory as a basis for the rejection of the
traditional values of immigrant groups. Montgomery (1984) discusses the relation between the
Protestant view of sin and Spencer's correction for bias in social analysis through .1f-criticism and
mental discipline. The significance of the notion of sin in social analysis is also developed. a study
of Durkheim's concept of anomie (Mestrovic, 19851. Mestrovic emphasizes that solidarity as the
response to anomie is not simply a matter of social regulation but of the reversal of modem society
in which the economic defines the moral, for instance, in the sacredness attributed to money (134
The concept of self-interest provides another point of entry into questions about the connection
between moral construes and society. In modern society, interest is presumed to be the
foundation of social behavior and the condition to which morality must respond. In this paper I will
explore some of the limitations of self-interest as a theory of social and moral life. I will argue that
in this theory the account of social institutions is constricted, their historical character is obscured,
and that the relations which sustain interest are neglected in the failure to acknowledge any other
form of social relation.

https://www.jstor.org/stable/1386432?seq=1

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Legal System

Conclusion
The rapid development and globalization of modern society cause reconsideration of the role and
interdependence of social regulators, primarily morality and law, which are the main systems of
rules governing the lives of human beings. The complex problem of correlation between morality
and law has been traditionally viewed as a debate between "legal positivists" and "natural lawyers"
about what is the essence of law and the boundary between law and morality. There are different
ways of thinking about the matter. Some would identify law and morality, claiming that moral rules,
as the ancient reflections of social values and personal beliefs, are potential law, enforced by the
individual choice of moral duty. However, the moral standards are diverse, especially in
multicultural societies; hence, a myriad of moral standards might not be generally respected
(unless all men agree in their beliefs). For instance, Catholics assert that abortion shall be against
the law; conversely, many feminists recognize it as a natural right of pregnant women. Evidently,
if law was based entirely on morality, it would lead to a social disagreement in whose moral ideals
should be endorsed to ensure a comfortable existence of every member of the society. In my
opinion, the principles of morality are underlying law, but they are only a starting point for a
legislator, the legal system should be based on fundamental values recognized by the majority of
society. Further than that law and morality shall be kept apart. What is more, a legal right is binding
even when it is morally wrong and not accordant to our feelings. In some cases, the freedom of
immoral behavior might be limited and legalized or to some extent immorality might not be illegal:
the abovementioned issue of abortion brings this out — some US states have passed restrictive
abortion laws, despite disapproval around the world.' Additionally, a plethora of legal rules, mostly
procedural, in moral content is neutral. In spite of the fact that the concept of law originates from
key moral dogmas; law shall not be a "legalization of morality." Very often there is a discrepancy
between law and morality and in order to act as an effective instrument of social control law should
not be bound by a definite idea of the good and evil.

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Legal System

Task 05

Introduction

The first definition of "common law" given in Black's Law Dictionary, 10th edition, 2014, is "The
body of law derived from judicial decisions, rather than from statutes or constitutions; [synonym]
CASELAW, [contrast] STATUTORY LAW". This usage is given as the first definition in modern
legal dictionaries, is characterized as the “most common” usage among legal professionals, and
is the usage frequently seen in decisions of courts. In this connotation, "common law"
distinguishes the authority that promulgated a law. For example, the law in most Anglo-American
jurisdictions includes "statutory law" enacted by a legislature, "regulatory law" (in the U.S.) or
“delegated legislation” (in the U.K.) promulgated by executive branch agencies pursuant to
delegation of rule-making authority from the legislature, and common law or "case law", i.e.,
decisions issued by courts (or quasi-judicial tribunals within agencies)

The History of Common Law

Common law is rooted in centuries of English history. It emphasizes the centrality of the judge in
the gradual development of law and the idea that law is found in the distillation and continual
restatement of legal doctrine through the decision of the courts.

Most law is generated, however, from the state and federal legislatures and common law is
subjugated to federal and state legislative enactments. That is, common law can be overruled by
legislative law (e.g., state legislatures can declare fornication between unmarried couples as legal
even though the state's common law states that is illegal. Once the state passes the law, it vacates
the history of the common law. However, a new common law tradition could be created around
the enforcement of new legislative laws as they are enforced and brought to the attention of the
court.

However, although state and federal legislatures have power over state and federal common law,
the Supreme Court has the final say in interpreting the constitutionality of all state and federal
legislative law and the constitutionality of state common law.

Additionally, every state has a constitution and the state courts can interpret state legislative law
in relation to whether it is constitutional within the constraints of that particular state's constitution.
The hierarchy among the different forms of law therefore looks like-state common law-state
legislatures-state constitution-federal constitution/Supreme Court.

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Legal System

Common law consists of the rules and other doctrine developed gradually by the judges of the
English royal courts as the foundation of their decision, and added to over time by judges of those
various jurisdictions recognizing the authority of this accumulating doctrine. Law of common
jurisdiction applied by these courts.

It was during the period between the Norman Conquest of England and the settlement of the
American colonies that many of the basic principles that eventually became part of the American
system of justice were established.

English common law emerged as an integral part of the transformation of England from a loose
collection of what were essentially tribal chiefdoms or proto-states to a centrally governed
civilization.

Over a 400-year period, from the eighth to the eleventh centuries, this cultural system of settling
disputes through local custom became increasingly formalized as the hierarchical organization of
Feudalism began to slowly replace the collective and egalitarian organization of the early tribal
peoples in England, Wars between various tribal groups brought growing political consolidation
and increasing individual ownership or land by powerful lords. As the once collectively owned
tribal lands came under the private ownership and control of feudal lords, the responsibility of an
individual to his kinsmen was replaced by the responsibility of a person to his lord. Where the
collective responsibility of kin-groups had once served as the basis of dispute settlement, it now
became the responsibility and the prerogative or feudal lords to see that justice was done.

As a means of consolidating power, feudal lords began requiring that dispute-- be submitted to a
local "court" for settlement.

By the time of the Norman conquest- in 1066, England was organized into approximately eight
large kingdoms, which were at best loosely knit collections of relatively independent feudal
landholdings. The basic units of social and political organization were the counties and "hundred."
The hundreds were subdivisions of counties, somewhat obscure in their origin but often privately
owned and independently governed, it is estimated that at the time of the Conquest approximately
half of all the hundreds were owned either by individual lords or by abbeys. The large number of
hundreds owned by the church indicates the economic and political power of the Catholic Church,
a situation that would bring it into direct conflict with a growing secular government in later years.

The hundred courts were essentially meetings of important hundred residents at which all manner
of local problems were discussed, among them the resolution of local disputes.

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Legal System

The right to hold court and to profit from it was the essential hallmark of a feudal ruler. Early feudal
rulers required that compensatory damages he paid not to the offended party but to the lord of
the hundred. The right of a lord to collect the profits resulting from the administration or Justice
eventually became an essential force in the development of common law after the conquest.

In addition to the hundred’s courts, feudal justice was also administered in the county courts held
by the overlords of counties. These overlords could command attendance at their courts by the
lords of the hundreds and other representatives. These early county courts prefigured the later
bicameral (two-house) legislatures of England house of commons and house of the lords and the
U.S. Senate and House of Representatives. It also established the relationship between the lower
and higher courts in the U.S. Because the overlords of the counties were more powerful than
lords of hundreds, it was possible for county courts to review and even overrule decisions
rendered by lords in hundred courts, much the same way as higher courts now can overrule the
decisions of the lower courts.

By 1066, England was halfway between tribalism and feudalism, between rule by custom and rule
by state law.

https://www.radford.edu/~junnever/law/commonlaw.htm

Common Law Received in Sri Lanka

Sri Lanka, formally known as Ceylon, is a multi-ethnic and multi-religion island nation in the Indian
Ocean, near the southern coast of India. The distance between the south-eastern tip of India and
north-western Sri Lanka is only about 40 miles. Sri Lanka’s total land area is 25,330 square miles,
roughly the size of West Virginia, and it a population of a little more than 20 million. Due to major
civil conflict that has affected Sri Lanka for more than two decades, no census was conducted in
certain parts of the country during the last two decades or more. Thus, all demographic figures
include relevant estimates for certain areas in the country.

The ethnic and religious diversity of the nation, and also its colonial history, have a direct bearing
on aspects of the legal system of Sri Lanka.

The country’s largest ethnic group is the Sinhalese whose native tongue is the Sinhala language.
The Sinhalese form about 74% of the population. The majority of the Sinhalese are Buddhists,
with a Christian minority.

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Legal System

The next largest ethnic group is composed of the Tamils who form 18% of the population, and
their native tongue is the Tamil language. The majority of the Tamils are Hindus, with a Christian
minority.

The majority of the Christians among both the Sinhalese and the Tamils are Roman Catholics.

The descendants of Indian tea-estate workers, brought in by the British from Southern India from
the nineteenth century to the 1930s, form a distinct group. Their native language also is Tamil
and they also are referred to as up-country Tamils. The majority of up-country Tamils are Hindus,
and they still form a mainstay of the tea industry employees. The 18% figure for the percentage
of Tamils in Sri Lanka includes the up-country Tamils.

The third largest ethnic group is composed of Muslims, mainly descendants of Arab traders, and
Malays, mainly descendants of South-East Asians who arrived in Sri Lanka during Dutch rule of
the country. For a significant segment of the Muslims, Tamil is the main language. The Muslims,
excluding the Malays, constitute about 7% of the population.

The other ethnic group is composed of Burghers who are descendants of Dutch and Portuguese
settlers, and are mostly Christian. Largely due to the strongly nationalist politics that began in the
1950s, a significant segment of the Burghers emigrated to Australia. Due to this emigration, and
also due to Burghers marrying Sinhalese and Tamils, the Burghers now are a relatively small
community in Sri Lanka. English is the first language for the Burghers.

The Burghers, Malays, and the Veddhas, who are the descendants of the original inhabitants of
Sri Lanka, form about 1% of the population. (All ethnic-composition figures are from the "New
York Times Almanac" 2008).

Colonial History and the Law

European control of what is now Sri Lanka began a few years after 1505 when inclement weather
drove a Portuguese fleet of ships, commanded by Lourenco de Almeida, into what is now the
Colombo harbor. Colombo, now the capital of Sri Lanka, is on the west coast of Sri Lanka.

Almeida, who also realized the strategic value of the island-nation in the context of trade routes,
established cordial relations with the King in Kotte. Over a few years the Portuguese, capitalizing
on the divisions within the Kotte kingdom, gradually gained control of much of the country’s coastal
regions. Kotte, situated in a suburb of Colombo, is now the legislative capital of Sri Lanka.

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The Portuguese did not introduce their laws in the coastal regions they controlled. They did,
however, establish the Roman Catholic faith as the strongest Christian faith in the country. The
Portuguese were ousted by the Dutch during the 1600s.

With the Dutch gaining control of Sri Lanka, primarily in the coastal regions, Roman-Dutch law
gained a presence in the country. This “Roman-Dutch law has withstood many a tide of legal and
political change to remain as the foundation of Sri Lanka’s general and common law.

https://www.nyulawglobal.org/globalex/Sri_Lanka.html

Overview of the common law in legal system

This section We discusses the influence of the common and civil law systems on the legal regime
of the country as of date, together with the indigenous laws and practices.

One of the ways by which English law influenced the legal system in Sri Lanka is by the
introduction of statutes, wherein statutes passed by the Parliament of the United Kingdom were
enacted as local law or the principles underlying the decisions of the English courts were codified
and adopted as local law. English law was also adopted when it was incorporated by reference
and where statutes based on English law were silent. It may also be noted that during the colonial
period, the application of Acts of the Parliament of the United Kingdom was extended to Sri Lanka
and English law was applied in respect of certain matters (such as the rules of the English
prerogative law required for the exercise of sovereign authority of the Crown) as a result of the
assumption of British sovereignty.

English law was also introduced into the Sri Lanka legal system by judicial activism where English
law principles were adopted by judges. Sometimes, this was done in derogation of the Roman
Dutch laws. Kandyan Law as a personal law applies to Kandyan Sinhalese, the Thesavalamai
Law is essentially customary law that is personal and territorial in character and applies
specifically to Jaffna Tamils in the Northern province and the Muslim Law applies to the Muslims.

Various tests need to be satisfied if the personal laws mentioned above apply to the persons in
question. However, Roman Dutch Law also finds its application in other aspects of life, as it is the
Common Law of the country. The Common Law in the island nation underwent significant
metamorphosis, as it was in a fluid state of aggregation, absorbing different aspects of law.

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The conglomeration of different laws caused the British colonial judges to encounter some
difficulties in ascertaining applicable laws, especially where Roman-Dutch law principles were
expected to be followed. As a consequence, on many occasions British judges introduced
principles of English law on the basis of ambiguity in the application of Roman-Dutch law. The
lack of judicial precedents, and the un-codified nature of the laws, provided an excuse for judges
to avoid applying Roman-Dutch law principles.

As a consequence, a body of English law principles was also in force along with Roman-Dutch
law and other indigenous laws such as Kandyan, Thesavalamai and Muslim Law.

https://www.nyulawglobal.org/globalex/Sri_Lanka1.html

Common Law in Sri Lanka

Sri Lankan law is based on English common law system. As a result, the English law principles
such as judicial precedent (lower courts follow the reasoning of the higher courts in similar,
subsequent cases) and ratio decidendi (reasons for judgment) govern the interpretation of the
case law. Civil cases are heard by the District Courts, and the Criminal cases by Magistrates’
Courts and High Courts. From decisions of these trial courts, an appeal lies to the Court of
Appeals and then to the Supreme Court. Parliament makes law in Sri Lanka. Laws are published
in Acts of Parliament. The term “Ordinance” refers mostly to legislation passed during the British
rule, the term “Law” or “Act” refers to more recent legislation. In most laws, the Parliament
delegates the rule making authority to administrative (executive) agencies. The rules or
regulations made by such agencies are published in the Government gazette. All the case law
cited here are from the Sri Lanka Law Reports (SLR). Before the SLR, there were New Law
Reports (NLR). Whenever there is a reference to NLR, remember they are older than SLR! The
cases on this site are just a handful of cases decided on human rights, known in Sri Lanka as
fundamental rights. However, you will be able to have a reasonable understanding of Sri Lanka’s
human rights by reading these cases.

http://hrlibrary.umn.edu/research/srilanka/legalsystem.html

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conclusion
Common is important in the English legal system as it’s got flexibility and cases approach but this
is a subjective decision and it will depend on the preferences of each individual. The most
important thing is that the Rule of Law and the Supremacy of Parliament work. But this is
something that can only be achieved by the will of each country and its effort to maintain it.

in the common law system, the judge can produce law and also to declare it by means of
interpretation of previous judgments or a written law. While the English law is being increased by
written statutes and EU regulations the role of the judge will be limited to the new legislation.

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Task 06

Introduction

Doctrine of judicial precedent has always played pre-eminent role in English law. It will be shown
in this essay that this doctrine is not an illusion, it simply cannot be. Conversely, it is a living and
continually developing feature of English legal system which is to work in the future as well as it
did in the past. The first part of this essay deals with the question of ratio decidendi, Truth is that
this ratio is usually difficult to find, however it will be shown that this sole fact is not able to
undermine the doctrine of precedent as such. The second part addresses the approach the
judiciary takes to the decision’s ratio. Is the judiciary really ignoring it? whenever possible? It shall
be proven below that it does not. The final part deals with the relationship between statutory rules
and case law and with the way these are applied by courts. It shall be shown that despite the
growing number of statutory rules and despite the priority of statute, there are areas of law which
are governed by precedents only and even in other areas of law, it is usually the case law which
is eventually looked at when dealing with a case.

https://www.law.muni.cz/sborniky/dp08/files/pdf/mezinaro/kalis.pdf

Ratio Decidendi

It follows from the doctrine of precedent that like cases should be treated alike. It means that if a
court is dealing with a case which shares material facts with a previous, already decided case,
the court is generally bound by the previous decision and should arrive to the same conclusion.
However, the court is not bound by the whole decision but only by the rules and principles the
decision creates and is based on. This is what is called its ratio decidendi. It is the crucial part of
a binding precedent which contains the relevant authoritative statements and legal reasoning. It
is therefore to be understood as the indispensable principle of law abstracted from the material
facts, which is used by the judge to make his decision. Only the ratio binds judges in the future
and all other pronouncements are said in passing and are considered obiter dicta.

Nobody disputes that the location of this essential part of a binding decision may and usually is a
very difficult task, for English judges are not limited in length and in what they cover in their
judgment, they usually do not specifically distinguish between ratio decidendi and obiter dicta
statements. The scope of the ratio varies as well and usually depends even on elements found
outside of the particular case. If we are looking at a very long decision of appellate court, or in

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case judges do not agree as to the reasons for decision, the task will get even more difficult.
However, there are certain guides how to locate the ratio:

When all judges deciding a case agree as to its outcome, their majority view contains binding ratio
decidendi. On the other hand, when a judge adopts a dissenting opinion, we can be certain that
it is obiter dicta and we do not need to take his statements into account as binding

It has been written above that judges mostly do not strictly distinguish in their decisions between
ratio decidendi and obiter dicta. Sometimes, however, they do make such distinction (even though
not expressly). As Denis Keenan notes, a judge may say “if it were necessary to decide the further
point, I should be inclined to say that…” These “if statements” are not to be applied to the material
facts of the current case and are therefore obiter dicta It is only by application a statement
becomes binding, everything else said by a judge is an expression of his opinion about further
hypothetical questions and even though it may have significant persuasive power, it is not binding.

However, in rare cases it may be really impossible to discover any ratio decidendi The Court of
Appeal held, for example, that there was no discernible ratio in case Central Asbestos Co Ltd v
Dodd. Even though it is unpleasant and will make the decision making more complicated, it is not
anything, which a judge could not deal with. In such circumstances the court will have to go back
in time and find an earlier case dealing with the same issue and apply it to the situation dealt with
now.

Application of Ratio Decidendi In Subsequent Cases

Some critics assert that judges can easily (and often do) ignore the ratio and eventually decides
the case regardless of the ratio found. It is not so. Judges of course may, in some cases, depart
from a previous ratio. However, this discretion is absolutely necessary in order for the law the
keep pace with reality and to sustain its development. Judges do not exercise this freedom in
arbitrary way. There are rules saying where this departure is admissible and where it is not. In
general, all higher courts bind the courts bellow and are usually bound even by its own previous
decision. There are, however, situations when strict following of the previous case’s ratio would
have adverse effect. To deal with these situations several exceptions from the rule of binding
precedent developed:

a judge does not have to follow previous decision if he distinguishes the current case from the
previous one on material facts, it means that he needs to find features of the case he considers
which are sufficiently different from the previous case

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as already mentioned above, the court logically does not have to follow a previous judgment

if its ratio is not discernible

if a decision conflicts with a basic legal principle it also ceased to be binding

if an important precedent or a statutory rule has not been considered by the court making the
previous decision, subsequent courts can ignore such decision

decision which has been overruled by a statute is also of no binding force

if there are several decisions issued by the same rank of courts, the court dealing with the question
should generally choose the later one, however it is not this simple, for the later one does not
necessarily have to be the correct one, conversely it could have been issued in ignorance of the
previous decision

After coming into effect of the Human Rights Act 1998, the courts ceased to be bound by any

previous case law conflicting with the Convention.

Statute V Precedent

It comes from the doctrine of Parliamentary Sovereignty that Parliament is the supreme law-
making body in the land and “no-one may question the validity of an Act of Parliament” Statutes,
as a form of parliamentary legislation, are therefore the primary source of English Law. However,
despite the above-mentioned facts, it is the case law created by judges that constitutes the
cornerstone of the English Legal system, for English law has never been generally codified. Law
of contract, tort and equity law, are still until these days coved by case law only. However even a
statute once dealt with in case will be interpreted by judges and eventually, it will be the case that
will be looked back by court, once deciding a similar issue in the future. A lawyer, when dealing
with a legal issue, will search reported cases even if the issue is already regulated by statute.
Disadvantage of statutes is that they are formed on basis of theory conversely case-law is purely
built by reasoned decisions, coming from real life situations. It enjoys a great deal of certainty and
flexibility. Judges are here to “apply the principles which emerge from the case-law of the past, to
adapt them to the conditions of the present, and so to mould them that they may be fit to serve
for the future” Critics assert that the case law is too rigid, complex and may sometimes cause
injustice However statutory rules can easily cause the same problem for the judges cannot depart
from a statutory rule if its wording is clear and without ambiguity. It takes a long process to change
a statutory rule and it may be even impossible to arrive to a change, sometimes only because of

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political tensions and disagreements. There is also no difference in complexity between

precedents and Acts of Parliament, for there is not only highly organized general codes but usually
also a complex bulk of statutory rules as well

The Doctrine of Judicial Precedent

In deciding matters of common law, the judiciary look to previous cases to determine what the
law is the doctrine of stare decisis (Latin: to stand by things decided). Landmark cases set a
precedent for subsequent determinations and are recorded in the form of law reports. Where
similarity exists to the prevailing conditions the precedent may be followed; where there is little
similarity the material facts of the case must be distinguished in order to set the precedent aside.
The ratio decidendi is central to this process, for it identifies the material facts upon which the
judgement is based and is indicative of the scope of application of the precedent to subsequent
cases.

Judicial review according to precedent, along with statute, forms a binding legal authority.
Persuasive authority includes obiter dicta, legal articles, legislative papers and decisions made in
other jurisdictions. Obiter dicta, comments made 'in passing' during judicial review, are viewpoints
on legal principle and are not constrained by the facts of the case. The more senior the judge, the
more persuasive the obiter becomes.

Stare decisis can be applied 'vertically' whereby precedent established in a higher court is binding
upon those of lower ranking according to the hierarchical, `pyramidal', organization of U.K. courts,
thereby enabling them to overrule decisions made in previous cases. It follows that precedent set
in the Supreme Court is binding upon all other courts. A higher court may reverse or overturn a
decision made in a lower court in consideration of a particular case, if that earlier decision were
found to be defective on a matter of law.

Stare decisis may also be applied 'horizontally' such that precedent set in one court is binding
upon all other courts of similar tanking. Occasionally, higher courts (the Court of Appeal and the
Supreme Court) may find an exceptional reason to depart from their own previous decisions.

The sovereignty of Parliament

Common law continually evolves through the doctrine of precedent, but it cannot override statute.
Parliament is not bound by precedent so is unaffected by its own previous decisions or those of

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the courts. The exception is where UK statutory law is in conflict with EU law, in which case EU
law must be observed.

Convention rights

The Human Right Act 19984 obliges the judiciary to interpret the common law such that it is in
alignment with the ECHRs. Where there is debate over withholding lifesaving treatment, the child
has a right to life under article 2; where treatment is non-consensual article 3 may be engaged,
hence the importance of establishing next the law on consent.

Precedent and consent for the medical treatment of minors

Under the Children Act 1989 the parents of a child have the right to consent to treatment on behalf
of their child 'for the purpose of safeguarding or promoting the child's welfare. Only one parent
need provide consent but the law requires that parents should consult over broadly-defined
'important' treatment decisions". Certain treatments are permitted only with the consent of the
court, exercising its jurisdiction of parents patriae 1901. Where the parents and doctors disagree
over what treatment is in the child's best interests the court may be called upon to decide.
Occasionally the parents' view may be upheld by the court to prevent treatment.

If competent, that is to say fully understanding of the treatment and its consequences, a minor
can consent to treatment as in Clinch v West Norfolk and Wisbech AHA. Here the obiter of Lords
Templeman and Scarman enable doctors to provide treatment without parental consent if that
treatment would indisputably save the life of the child, where the opinion of the parents cannot be
sought or where, if sought and refused, there is insufficient time to make the child a ward of court.
This 'defense of necessity' makes lawful a blood transfusion to an incompetent child of a Jehova's
Witness.

The operation of precedent in cases of serious childhood illness

In Re Bits the question was whether or not to allow an operation to be performed for a bowel
obstruction that would save the life of a newborn baby with Down's syndrome. The parents
withheld consent in the understanding that the child was destined for a life of severe handicap.
The child was made a ward of court and although the parents' wishes were initially respected, the
operation was ordered to go ahead upon appeal.

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Material to Lord Templeman's judgement was that both the life expectancy of the child and the
degree of handicap were likely to be commensurate with that of any other child with Down's
syndrome. However, he allowed for a different outcome in subsequent cases where:

the future is so uncertain and where the life of the child is so bound to be fill of pain and suffering
that the court might be driven to a different conclusion.'

In Re B, the ratio allowed a procedure against the parents' wishes to save a life, a precedent that
was followed in Re A where the difficult decision was made to order separation of conjoined twins,
sacrificing the life of one twin to prevent the death of both. Also considered in Re A was the ratio
in Airedale NHS Trust v Manilas this provided the precedent for withdrawing life-sustaining
treatment to a patient in a persistent vegetative state. Applied in Re A. this reflected the status of
the non-viable twin in deliberately removing its life-sustaining twin. Lord Templeman's abater in
Re B was considered in Re J where the precedent was duly extended on the basis of the extreme
disability that arose from prematurity. Here the ratio reflected the suffering that attends
mechanical ventilation and deemed it lawful to withhold that treatment even if that meant that the
child would inevitably die.

The facts of a further case, National Health Service Trust v Da, were so similar to those in Re J
that it was a simple process, applying Re J, to determine the lawfulness of withholding respiratory
support to prolong the life of a severely handicapped child. Precedent in Re J was also considered
in An NHS Trust v MB. The ratio in this case made lawful the withholding of treatment intended
to delay the inevitable premature death of a child with normal cognitive function suffering from
spinal muscular atrophy. This did not include the respiratory support to which the child was
accustomed. The judgment applied Portsmouth NHS Trust v Wyati where the court permitted
doctors to withhold mechanical ventilation from a profoundly handicapped premature infant.
Treatment to support life and palliate suffering was required to be given so long as that treatment
was not itself a source of pain and suffering.

An NHS Trust v MB was distinguished from Re C, involving a child with the same disease, where
no available treatment could be held to alleviate suffering. Consequently, the ratio made lawful
the withholding of further mechanical ventilation once it had been withdrawn. Also distinguished
was Re C, a case of a baby brain-damaged through meningitis, where any treatment given could
only be expected to exacerbate suffering.

The judgement in An NHS Trust v MB was considered in Re B where Mr Justice Coleridge's obiter
allowed the experts' report to form the basis of future decisions to withhold treatment 'where the

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medical definitions and situations which may arise in emergencies are not necessarily capable of
complete contemplation.' The facts material to subsequent cases, Re K (concerning the
withdrawal of tube feeding in a baby with myotonic dystrophy) and Re L (concerning a baby with
a severe disability due to trisomy 18), were sufficiently similar to those that went before them to
allow the precedent that originated in Re J, and its derivations, to be applied.

Conclusion

This series of cases illustrates not only how the rules of precedent operate, but how the cascade
of precedent progressively modifies, or 'fine tunes', the common law to accommodate for small
but significant variations in the material facts of successive cases. In so doing, the clarity and
consistency of the law increases across the spectrum of situations to which it must be applied.

https://www.medicalandlegal.co.uk/wp-content/uploads/2012/05/The-doctrine-of-judicial-
precedent-with-special-reference-to-the-cases-concerning-seriously-ill-new-born-infants..pdf

Doctrine of Judicial Precedent in English Legal System

The doctrine of judicial precedent is based upon the principle of stare decisis, which means the
standing by of previous decisions. This means that when a particular point of law is decided in a
case, all future cases containing the same facts and circumstances will be bound by that decision
as signified in Donoghue v Stevenson and Grant v Australian Knitting Mills. Whilst the doctrine of
judicial precedent helps to maintain the interests of justice, many have argued that it restricts the
laws’ ability to keep abreast with the changes in society and that much restriction thereby exists.
Consequently, there are advantages and disadvantages to the doctrine of judicial precedent
which will both be discussed in this study. This will be done by firstly considering the role and
importance of the doctrine, followed by a review as to its advantages and disadvantages. Once
the relevant information has been gathered an analyzed, an appropriate conclusion will then be
drawn.

Role and Importance of the Doctrine of Judicial Precedent

The doctrine of judicial precedent is a general principle of common law that is established in a
case to help Courts decide upon similar issues in subsequent case law. Judicial precedent is
defined in the Oxford Dictionary of Law as a “judgement or decision of a Court used as an authority
for reaching the same decision in subsequent cases.” There are two different kinds of judicial
precedent that exist which are; authoritative and persuasive. Authoritative precedent binds all

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lower Courts, whilst persuasive precedent does not actually have to be followed and is intended
to merely persuade the Court into making a particular decision. It is necessary that Courts always
follow the judicial precedent doctrine so that any discrepancies’ can be avoided. This will provide
greater certainty to the judicial system, which is vital in maintaining the interests of justice. Not all
agree that judicial precedent is that effective, however, and have instead argued that many of the
principles are weak and outdated. This is due to the fact that judicial precedent is ageless and so
a decision that was made a long time ago by a Court of Appeal, for instance, will still have to be
followed until “it is distinguished by another Court of Appeal or overturned by the Supreme Court.”
Judicial precedent’s that have been set by higher Courts will therefore be binding upon all lower
Courts unless the same Court or the Supreme Court has overturned the previous decision as
identified in Young v Bristol Aeroplane Co Ltd. Therefore, whilst judicial precedent does have
some drawbacks, it is still an important part of the judicial system and is necessary in the interests
of justice.

Advantages

There are many advantages to the doctrine of judicial precedent with one of the main advantages
being the ability to save time when making a decision on a case. If a Court is already provided
with an answer to a problem in which they face, it will not take as much time to reach a reasoned
conclusion. This is because the Court will not be required to analyses the case and make a
decision as they will already have the answer before them, which is a significant benefit within the
judicial process. An example how effective judicial precedent can be is exemplified in the case of
Hunter and Others v Canary Wharf Ltd and London Dockland Development Corporation. Here,
the Court did not have to form an original precedent was could merely apply a previously
established principle to the issue at hand. Another advantage, which has already been mentioned,
is the consistency between cases. This strengthens the system and is also likely to reduce crime
since those who are aware of the consequences will be less likely to commit a criminal offence.
Greater fairness is also provided as cases with similar facts will be treated the same. This is of
course unless there is some further fact which is material to the decision as the Court will then be
capable of reaching a different conclusion. The existence of a judicial precedent may also prevent
a Court from making a mistake as guidance will be provided as to how a case ought to be dealt
with. Therefore, a judge will be less likely to make a mistake when reaching a conclusion and a
decision will be deemed to be a lot stronger. It will make it difficult for a Court’s decision to be
contested as there will be case law in place that will back up the Courts decision as shown in

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Kadhim v Brent London Borough Council. This is important in preserving the integrity of the justice
system and maintaining Judge’s confidence.

Injustice will also be prevented as it would certainly be unjust for different outcomes to be reached
in two cases with similar facts. This would be unfair and society would most likely lose confidence
in the justice system. Judicial precedent also prevents judges from producing prejudicial decisions
since a judge will often be bound to follow a previous decision even if he disagrees with it. This is
important in ensuring that the rulings of judges remain as consistent as is reasonably possible so
as to prevent confusion and unfairness.

Another advantage that exists is the ability to develop the law even further. Making law in decided
case provides an opportunity for growth and legal development and ensures that the law is able
to keep abreast with the continuous advances in society. Courts are able to lay down legal rules
and principles a lot quicker than Parliament and because there are constant societal and
technological advances, it is necessary that new legal rules and principles can be established
more conveniently. The doctrine of judicial precedent can also be flexible in that judges are able
to make decisions on a case-by-case basis according to the individual facts and circumstances.
However, this flexibility is restricted by the judges’ obligations to follow previously decided cases.
Because there is a centralized legal system, it is much easier for judges to follow. This is
especially so in the UK were there are only a small number of Courts. Arguably, there are many
advantages to the doctrine of judicial precedent, yet is unclear whether these outweigh the
disadvantages which will be discussed in the next section.

Disadvantages

Whilst there are many advantages to having a doctrine of judicial precedent in the, it often said
that the doctrine introduces unnecessary restrictions into the law. Because of the fast pace at
which society advances, it is necessary for the law to keep abreast with any changes that are
made. However, the existence of judicial precedent often prevents judges from developing legal
doctrine in accordance with societal developments. This demonstrates how the judicial system is
somewhat outmoded as reliance upon date case law decisions will be made. This may not be
appropriate in modern society and it seems as though further advancements may need to be
made. This has a negative impact upon the role of judicial precedent and highlights the complexity
of the system. This is because a certain area of the law may have developed over time, yet judicial
decisions may not reflect the changes that have been made.

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Another disadvantage is that the volume of cases may result in too many precedents, causing
confusion. Because there is significant amount of case law decisions, it can be extremely difficult
and time consuming to understand the law. It has also been put forward that judges may look for
reasons not to follow a decision and therefore produce an illogical decision. This can have
dangerous consequences and is not what the doctrine intended. Judicial precedent may also
cause injustice as the overruling of an earlier case may spark outrage if individuals have
conducted their affairs in accordance with a decision. This weakens the importance of the judicial
precedent doctrine and seems to counteract its original objectives.

Since the Human Rights Act 1998 was enacted, the doctrine of judicial precedent has in fact been
weakened. This is because legal rules and principles must be read and given effect in a way that
is compatible with the rights that are contained under the European Convention of Human Rights
1951. Any legal rules or principles that appear to conflict with such rights must therefore be
amended to ensure adequate protections are being provided to individual human rights. This has
a significant impact upon the judicial precedent doctrine since lower courts may be able to
overturn previous decisions if it can be shown that they are incompatible with the rights under
Convention. As noted by Betten; “when confronted with the Convention, British judges will in many
respects have to put themselves into a different interpretative frame of mind.” This was recently
exemplified by the case of Culnane v Morris & Anor when Eady J had to consider the effect section
10 of the Defamation Act 1952 had upon the rights contained under the Convention. Under the
judicial precedent doctrine, the Court would have been required to follow the decision in Plummer
v Charman. However, because the decision in Plummer was incompatible with the Convention
rights, Eady J was capable of side-stepping the decision. Therefore, it could be said that judicial
precedent is not effective in cases concerning human rights.

Subsequent to the enactment of the HRA, it therefore seems as though the judicial precedent
doctrine is largely being undermined since the judiciary are no longer required to follow previous
decisions if they are incompatible with the Convention. It could be said that the doctrine is no
longer important since the Court in Miller v Bull departed from the decision in Ahmed v Kennedy
regardless of the fact that the Ahmed decision was made subsequent to the HRA’s enactment. In
has been suggested in view of these cases that a “gaping hole in the precedent wall” exists as
“new human rights points can be taken at whatever level they first arise, notwithstanding previous
cases which would otherwise be binding.” Consequently, it evident that judicial precedent will not
always be followed if it can be shown a decision is incompatible with Convention rights. This has
also been recognized by Zander who put forward that; “under the Human Rights Act 1998, the

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operation if the doctrine of precedent may be set aside.” Therefore, Courts may be free not to
follow the decisions of higher courts. This will only be applicable in cases concerning human rights
and so the judicial precedent doctrine will still be upheld in the majority of instances.

Furthermore, once a human rights issue has been recognized subsequent Courts will then be
required to follow the position that has been taken. This re-instates the judicial precedent doctrine
further and maintains consistency in the judicial system. As identified by Fafinski and Finch;
“section 2 of the HRA requires future courts to take into account any previous decisions of the
ECHR.” These decisions will not, however, be formally binding, though they will be highly
persuasive. In effect, any human rights issues that have been dealt with will be subject to the
precedent doctrine. In general, Courts will be required to follow any the jurisprudence of the
ECHR, provides that it is clear and consistent yet “it should never be suggested that a court is
bound by Strasbourg decisions.” It could be said that the precedent doctrine was essentially put
on hold when the HRA was enacted to enable the Courts to deal with human rights issues
effectively. However, the doctrine is now being restored as human rights decisions are being
made post HRA. Arguably, whilst the HRA had a significant impact upon the judicial
understanding of judicial precedent the underlying features of the doctrine remain unchanged and
it is only a matter of time before all human rights issues have been dealt with by the Courts and
the doctrine is fully restored.

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/

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Conclusion
The doctrine of judicial precedent primarily assists Courts when making decisions via previously
decided case law. This certifies that certainty and consistency is being provided within the judicial
system and enables a speedier judicial process to be effectuated. Greater fairness also exists as
cases with similar facts will be treated the same, which prevents any injustice from occurring.
Legal rules and principles can also be developed under this process and a more flexible judicial
system is established. On the other hand, there are many inherent drawbacks that exist under
the doctrine, such as the unnecessary restrictions that are placed upon judges to follow previous
decisions. This could prevent the law from keeping up-to-date with advances in society as many
of the principles may be somewhat outmoded. Furthermore, it may also be time-consuming and
difficult to understand the law as a result of the number of cases that exist. Since the HRA was
enacted, the doctrine of judicial precedent also appears to have been weakened, yet as new case
law decisions are established, the doctrine will in fact be restored. This is essential given the
importance of judicial precedence and although there are many disadvantages, these appear to
be outweighed by the advantages.

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