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◀︎Judges and the law


This course looks at how judges make laws, how the common law system works and the ins and outs of a system like the UK's which relies heavily on such rules and rule making. The course will outline the fundamental differences between civil code systems and common law systems and will consider the relationship between judicial law and statutory law.

This OpenLearn course provides an example of Level 1 learning inlei.

learning successes

After studying this degree, you should be able to:

  • understand what a common law system means

  • demonstrate a good knowledge and understanding of what common law is and how its rules are made and modified

  • discuss how to change or avoid a precedent

  • identify thereason for the fallyfor righta lawsuit

  • read and analyze legal material (cases, laws and scientific commentaries).

1 The role of the courts and the judiciary

This course examines the role of the courts and judiciary in England and Wales. The English legal system is often referred to as the "common law" legal system. Before the Middle Ages, law in what we now call Great Britain was largely regional. Different regional kingdoms had different laws. In time, judges applied the same law throughout the kingdom established after 1066, so it was common in all parts of the country. This was called "common law". (Common law is a system followed in many countries: Canada, Australia, India, New Zealand and the United States, to name a few, but we will focus on its development in England and Wales.)

This means that many of our primary legal principles were established and developed by judges (rather than Parliament) on a case-by-case basis, in what is known as the system oflast case, where lower courts are required to follow principles established by higher courts in previous cases. Common law (or judges' law) is at least as important to us as law passed by Parliament. For example, there is no Act of Parliament that tells us that murder is a crime; It is a common law offense that has been perfected by judges over the centuries.

Another important role of the judiciary is the interpretation of the law. Although the meaning of the law should be clear and concise in a law, this is not always achieved. Many cases go to court because of the meaning of a word in a law. For example, the Dangerous Dogs Act of 1991 includes the phrase "any dog ​​of the type known as a pit bull terrier", but does not say whether "type" means the same thing as "breed". To help interpret the laws, the judiciary has developed a set of rules: the literal rule, the golden rule, the harm rule, and the intentional approach. They all take slightly different approaches, and the judiciary does not always agree on which approach to use; therefore, the interpretation of a law may depend on the judge handling the case. However, once this interpretation is made, it can set a precedent for later cases.

Finally, this course examines how the common law system works, the fundamental differences between the civil code (continental) and common law systems, and the advantages and disadvantages of the common law system, which is highly dependent on the rules and regulations that support the development of standards. This course examines the role of the judiciary in the legislative process, examining the historical origins of the common law, the system of precedent, and the rules of legal interpretation.

The law of England and Wales has developed over many centuries. There are several ways to create and develop the law. As you will see, historically the most important influences have been local customs and judges. As Parliament gained power in the 18th century, statutes became an important source of new legislation. Judicial decisions continued to be important as they filled in the gaps where written law did not exist and interpreted the meaning of written law. This course examines some of these court decisions.

2 Part A Historical development of common law

2.1 The history of common law

Prior to the Norman conquest of England in 1066, there was no unified national legal system. Prior to 1066, the English legal system comprised a variety of oral customary rules that varied by region. the law ofmillionin the south of England, for example, was different fromMercianerin the center of the country (see map below). Each county had its own local court that exercised its own jurisdiction in accordance with local customs, which varied from parish to parish and were often arbitrarily applied. For example, courts often consisted of informal courtspublic meetingswhich weighed conflicting claims in a case and, if unable to reach a decision, might require the defendant to prove his guilt or innocence by carrying a red-hot iron, or lifting a stone from a kettle of boiling water, or some other form of "evidence". ." " " of correction. If the defendant's wound healed within a prescribed time, he was presumed not guilty; If not, execution usually took place.

Judges and the law: view as a single page (1)

Figure 1: A map of Great Britain before 1066 – a country with different regional laws

Unlike continental civil law, the English system does not go back to a specific collection of texts, but to what is called "tradition expressed in action". It began as common law used in the king's court to resolve disputes and conflicts that directly affected the monarch. At first, this only included the most serious crimes, which became the foundations of the Crown. After the Norman Invasion there were many different types of courts alongside the royal court, for example the Devon and Cornish tinnary courts (tin mining), the royal hunting forest courts, but mostly in potential rivalry with the royal court, were the feudal courts and manorial courts. During the reign of Henry II, his court clergy began to specialize in legal matters and to act as judges. Clerics were part of the king's royal entourage.

In 1154, Henry II institutionalized common law, creating a unified "common" judicial system for the country, incorporating local customs and raising them to the national level, ending local control, abolishing arbitrary remedies, and reintroducing aJuryCitizen oath system for investigating criminal complaints and civil proceedings. The empire's judges made regular trips across the land to bring the king's justice to all citizens. His goal was for there to be a common legal system across the country, so the laws became known as common law. The itinerant judges formed a core of judges with national jurisdiction who had no local roots. Thus they were much less susceptible to corruption, which thwarted a similar attempt in the early 12th century in which royal judges were stationed in local parishes. Under Henry II, judges were sent first to the "circuits" to hear petitions and do the work of local courts in the most important places they visited. Over time, the judges' decisions were written down. As the decisions of these courts were recorded and made public, the practice developed that previous decisions (precedents) were cited before the courts as an argument and considered persuasive.

These practices became the Common Law of England, the law available throughout the empire. Perhaps the most compelling reason that Henry II should be considered the "father of the common law" is that he was largely responsible for the regional and itinerant system of royal justice that made the law truly universal, available to all. It is true that Henry II, who reigned from 1154 to 1189, did many important things to promote the development of common law, for example by popularizing the royal court. However, we do not know how the royal court (called theReal cut) acted before Henry II during the Norman period, as the oldest documents date from his reign, so it might be presumptuous to attribute too much to Henry II. In any case, many factors of a general historical nature contributed to the development of common law, and it may be more meaningful to speak of the various parts that helped nurture common law from its first green shoots to its full flowering. than trying to find a "father".

The clergy played an important role in expanding the king's legal powers. They developed a set of request forms, calledhe writes, and established procedures that gave them, perhaps significantly, greater importance and provided them with a large income! Another important development was, for example, the expansion of the "real peace'. This was the right of the monarch, as opposed to a local lord, to deal with local riots or crimes.

Another reason the royal courts gained much business, and therefore power, was the interpretation of the Charter of Gloucester (1278) by the royal judges. This act stipulated that no cases involving an amount of less than 40 shillings were to be brought before the royal courts, but rather they were to be tried in local courts. The judges interpreted this to mean that no personal action could be brought in the local courts to collect more than 40 shillings, leaving all important cases to them. What is relevant here is that the judges were eager to win the litigants, as their fees varied according to the size of the deals made.

The distinguishing feature of the common law is that it is the law of the courts as expressed in judicial decisions. The reasons for deciding cases are based on the principles of previous judicial decisions, as opposed to a system based solely on law. In addition to the system of precedent, other features of common law include trial by jury and the rule of law doctrine. Originally, the supremacy of law meant that not even the king was above the law; Today, this means that the actions of government agencies and ministers can be challenged in court.

2.2 Use of language

The use of language is of great importance in law. As a law student, it is important that you use the language correctly. Therefore, the remainder of Part A of this course addresses the importance of language in law.

Box 1 Use of language

By now, you've had a few opportunities to look up the meaning of words you weren't sure about. The correct use of language is often very important. Suppose I told you that "an organization recently produced a report claiming that most new homes built in this century are of poor quality."

So you might think that things like broken wood, cracked tiles, windows that don't close properly, and crooked floors are bad for homes. If what the report really identified as lacking turned out to be features such as the lack of front gardens (due to the use of dual driveways) and the lack of any visible resemblance to older properties in the same district, then you might as well say, "It's not of poor quality. In fact, it is poor design. The report seems to attack the design of the houses, not the quality of the finish." This misunderstanding stems from the fact that I initially told you that the report stated that the houses were of “poor quality”.

These types of misunderstandings, caused by careless use of language, happen all the time. In any area where rules apply, it's important for people to pay special attention to how they use language.

Now I would ask you to try the first four tasks where you are asked to use dictionaries. When we introduce a technical term or term, I will give a definition of it. However, you may not be sure of the meaning of some other words in this course. (The same applies to courses in associated law.)

If you go to a large bookstore and go to the section called something like "Dictionaries and Reference Books", you will see a wide variety of dictionaries. Some are general dictionaries and some are specialized, e.g. B. a science dictionary.

You may also find that there are a wide variety of dictionaries available online.

Activity 1 With a dictionary

Temporary Coordination:0 hours 20 minutes

Why are you using a dictionary? Try to think of at least four times you referred to one.


My answers are probably very similar to yours:

  1. find the meaning of an unknown word

  2. to check the meaning of a familiar word and related words

  3. to check the spelling of a word

  4. to see how to pronounce a word

  5. to see what synonyms (different words with very similar meanings) are available; sometimes a thesaurus is used for this purpose

  6. look up a technical term in a technical dictionary to get a much more detailed description (eg photosynthesis).

Activity 2 What dictionary?

Temporary Coordination:0 hours 30 minutes

Read the next section and write your own definitions of the three words in bold:

The first dictionaries were lists of words written on clay tablets organized like a thesaurus, in the secondMillenniumv. Even after the invention of the alphabet in the same millennium, many centuries passed before alphabetical order became a common tool for organizing information. The need for adictionaryin which difficult English words were explained by simpler English words took shape in the late 16th century, and by the 18th century the dictionary was competing with spelling books as a quick source of "reference".Monolingualdictionaries tooOxford English Dictionary, which list and define words in a language. Bilingual dictionaries provide the equivalent of language A in language B. Pronunciation dictionaries appeared later in the 18th century, and specialized dictionaries for technical subjects or controversial usages like slang in the 19th and 20th centuries; an example of the latter is FowlerA dictionary of modern English usage.

After writing your definitions, look up the three words in a general dictionary and compare your definitions with the dictionary.


Often the general dictionary will tell you whether the word is a verb, a noun, or some other part of speech. Some also provide an example of the word used in a phrase or sentence.

2.2.1 Prefixes and Suffixes

Prefixes and suffixes can provide clues to the meaning of words. Prefixes go before the main part of the word:

  • In "prenatal", "ante" is a prefix meaning "before", and the full word means "before birth".

Suffixes are added to the end of the word:

  • -ive, -ing, -ness, and -ion are all suffixes and are used to form words like active, willing, willing, and action.

Activity 3 Understanding vocabulary

Temporary Coordination:0 hours 30 minutes

See how many words you can find that start with the following prefixes:

  1. sub- (meaning "below")

  2. super- (meaning "up")

  3. trans- (meaning "over").


Understanding the meaning of the prefix "sub-" will help you cope with an unfamiliar word: knowing that "sub" means "below" and that "marine" has something to do with the sea will help you learn the word "submarine". " ". .

Expanding your vocabulary will make your writing more interesting and lively. A thesaurus (meaning "hidden treasure") provides information on words whose meaning is related to the word being looked up.

If you look up "aroma" in a thesaurus, you might find the following related words (synonyms): bouquet, aroma, odor, perfume, ambient note, taste, smell, smell, perfume.

You may need to check usage in your writing; we don't usually say "the flower had a beautiful touch"!

A thesaurus can give words “opposite” (antonyms) meanings, for example, adorable – hateful.

Activity 4 Expand your vocabulary

Temporary Coordination:0 hours 20 minutes

Try to find three words that you often use when writing, for exampleimportant,important, yousignificant. See if you can find other words that you prefer to use as alternatives.


Finding the right dictionaries for you really pays off: a useful bit likeO Oxford Pocket Dictionaryfor quick reference and a bigger one likeDas Oxford Advanced Learner's Dictionarywhere words are inserted into phrases or sentences that help clarify usage.

Note: These activities are taken from The Effective Use of English, Open University Student Toolkit 1.

2.3 Summary of Part A

In Part A you learned:

  • that the English legal system is a common law system;

  • that this means that much of the law has been developed by the courts over time;

  • How to develop language use.

part Blast case

3.1 Introduction

Precedent is the basis of common law. The doctrine of binding precedent is known as the doctrine ofHe decided, which is Latin and means "to stay out/stick to decided cases", i.e. to follow precedent. In other words, once a principle has been decided, it must be followed in future cases. The doctrine refers to the fact that, within the hierarchical structure of English courts, the decision of a higher court is binding on a lower court. In general, this means that when judges hear cases, they look to see if a similar situation has already been heard in court. If the precedent was established by a court equal to or superior to the court hearing the new case, the judge in the present action must follow the rule of law established in the previous case. If the precedent came from a lower court, the new case judge may not follow it, but will certainly consider it.

This precedent system consists of three main elements:

  • the hierarchy of the courts

  • binding precedent

  • Accurate legal reporting.

3.2 The hierarchy of the courts

A hierarchy of courts determines which decisions are binding on which courts. There are some exceptions and complications below, but in general and for most purposes, the higher a court is in the hierarchy, the more authoritative its decisions will be. I mean "authoritative" in the sense that the decisions of higher courts oblige lower courts to apply the same established principle.

Activity 5 challenges you to explore the structure of the court even further.

Activity 5 The judicial structure in England and Wales

Temporary Coordination:0 hours 20 minutes

It will be helpful to look at a diagram of the judicial structure in England and Wales.

  1. HM judicial service

It may be helpful to open this link in a separate window in your browser.

The graphic you will see is presented by Courts and Judicial Courts, which is the collective name for the judges serving in the courts of England and Wales. Please take a moment to look at the court structure diagram and familiarize yourself with the status of the various courts. There are over 200 magistrates' courts in England and Wales and thousands of magistrates who deal with a wide range of cases every day. There are a large number of such cases (over a million a year) and they generally do not involve a dispute over the meaning of the relevant law, so these cases do not need to be heard by other magistrates' courts under the old system. In contrast, the UK Supreme Court hears only around 80 cases a year and its decisions are binding on all other courts.

You may find it helpful to see if you can find newspaper reports about cases in as many of these courts as you can find.

3.3 Structure of the court system in England and Wales

3.3.1 Supreme Court of the United Kingdom

This is the UK's highest Court of Appeal and was created by the Constitutional Reform Act 2005. The court took office on 1 October 2009. In general, approval of an appeal must be sought before it can be heard. to the Supreme Court of the United Kingdom.

As the Supreme Court of Appeals, it decides legal issues of general public importance and focuses on cases of the highest public and constitutional importance. Its decisions are binding on all lower courts in the judicial hierarchy. By focusing on legal issues of public importance and cases of the highest public and constitutional importance, the court makes decisions that help shape society. The Court:

  • is the final court of appeal for all civil matters in the UK
  • is the final court of appeal for all criminal cases in England
  • Wales and Northern Ireland (but not Scotland)
  • it is the final arbiter of decentralization issues.

The remainder of this course relates to the House of Lords. Until 1 October 2009, the House of Lords was the highest court of appeal in England and Wales. Therefore, the powers and rules of the former House of Lords are still relevant to your studies.

Box 2 Understanding the importance of thinking

You thought a lot to get here. Thinking is something we do all the time. It is an essential part of life. Although we all learn a lot in school, we are not so often trained in the art of thinking. Before delving into the course, it is worth pausing to consider some important aspects of thinking. Activities 6 and 7 will help you improve your thinking.

To begin with, I'd like to ask you to consider some basic questions about education.

Activity 6 The importance of thinking skills

Temporary Coordination:0 hours 30 minutes

Record your answers to the following questions:

  1. Why do you want to be a student?

  2. What do you consider to be the goal of higher education?

  3. How do you think your answers to the above question would differ from the answers that might be given by government, employers or academics?


Of course, there are no fixed answers to these questions. People and organizations have their own reasons and points of view. People give a number of reasons why they should become a student at the Open University. For example, they might want to improve their job prospects, explore and gain knowledge about an interesting topic, general development, or connect with others. Maybe your answers to the second question were the same as the first. Or perhaps you mentioned broader skills and traits that can be acquired, such as confidence, communication or interpersonal skills.

Did you mention expanding or developing thinking skills in your answers? If so, how important was that compared to other reasons you gave for studying and getting a higher education? The ability to think, in particular the ability to think critically, is often cited as one of the main purposes of education by those involved in the provision of higher education today. Look at the list below and compare it with your answers.

Traditional goals of higher education:

  • Adopt a distinctive way of thinking about concepts, evidence, and theories.

  • adopt an impartial and critical attitude towards the facts, assumptions and explanations

  • Approach problems systematically, logically and effectively.

  • Consideration of the adequacy of the evidence and review of alternative interpretations of the evidence

  • Demonstrate a deep understanding of complex and abstract concepts within the discipline.

  • clear and persuasive writing, respecting appropriate academic styles and conventions

  • be able to propose and solve problems by properly applying concepts and techniques.

Activity 7 thinking skills in current education

Temporary Coordination:0 hours 10 minutes

Can you explain why thinking skills are considered so important in education today?


Education can be seen as the most important path for the development of individuals and society. There are several possible reasons why you might have suggested that thinking is an important area of ​​development. Perhaps your motives are related to economic factors, or perhaps social, cultural, or educational factors. A strong argument today is that knowledge is essential to our information age and the transition to a knowledge-based economy. The creation and use of knowledge depends on our ability to think. Good thinking can be seen as empowering for individuals and society. Education can be seen as a process of uniting a community around an issue. For example, you can become a social scientist or mathematician by learning the mindset, language, and other characteristics of that community.

Your reasons for studying and what you see as the purpose of higher education will influence how you think, your study style and other aspects of learning.

(Video) Lawyer Goes OFF on Judge

Note: These two activities are from Expanding and Developing Your Thinking Skills, Open University Student Toolkit 9.

gentlemen's house

Until the creation of the Supreme Court of the United Kingdom, the House of Lords was the most authoritative court in England and Wales. The House of Lords used to be bound by its own past decisions until this practice changed in 1966. The justification for the old practice was that decisions of the highest court in the country should be final, so that there would be legal certainty and finality in disputes. This practice was amended to allow the House of Lords to adapt the Act to changing social conditions and to take into account the decisions of the Commonwealth High Courts.

The possibility for the House of Lords to amend its past decisions is a recognition that law, whether expressed in statutes or cases, is a living and changing institution that must adapt to the circumstances to which it is applied in order to maintain its practical relevance. . ”

3.3.2 The style of legal cases

Activity 8 asks you to read Reading 1: A short excerpt fromthe english legal system(Slapper and Kelly, 2003) – and identify what you think the benefits are of allowing the House of Lords to overrule its past decisions. This excerpt gives examples of cases where the House of Lords did not follow its own previous decisions.

This may be the first time you read a legal case name. Case names are written in a specific style. The first case mentioned in Reading 1 is, for example,Conway contra Rimmer(1968). The "v" in the middle stands for versus, which is Latin for "against". On both sides are the names of the parties. The first name is the person or organization that filed the case. If it is a civil case, this person is referred to as therequester(formerly calledplaintiff) and the other part is called dieaccused. In criminal proceedings, the person responsible for the proceedings is appointedfiscal, and the other person's name is dieaccused. in that caseR contra Smith, the "R" stands forrex(Latin for king) theregina(Latin for queen) and shows that the case is an accusation of the crown, that is, of the state. The year 1968 refers to the year the case was reported, and we will address the issue of case reporting later in this course.

You must read Lesson 1 at least twice. The first time you try to get an overview of what the reading says. You should then read the question again and on the second reading make some notes and extract relevant information and arguments from the reading to answer the question.

Activity 8 Allow the House of Lords to overrule its past decisions

Temporary Coordination:0 hours 45 minutes

Read Reading 1: 'Cases where the House of Lords overturns past decisions' and write a short paragraph (about 50 words) explaining what you think would be the benefits of allowing the House of Lords to overrule its past decisions.

click nowon hereto read the Reading 1 document (PDF, 0.1mb, 2 pages).


This is an example of an answer that isn't detailed enough:

Judges and the law: view as a single page (2)

You've probably already noticed other advantages.

Judges and the law: view as a single page (3)

Figure 2: It is important that the law is clear and unambiguous so that no one is surprised when it is applied

3.3.3 The Court of Appeal

The Court of Appeal is always bound by previous decisions of the House of Lords.

In principle, the court of appeal is also bound by its own preliminary decision. However, there are a number of exceptions to this general rule. Lord Greene MR has listed these exceptions atYoung gegen Bristol Airplane Co. Ltd(1944).

MR stands for "function master". This is the judge who heads the civil division of the Court of Appeal. The curious name comes from the Middle Ages, when a senior chancellery official was in charge of the chancellor's role, that is, the written matter. A good source of information on legal terminology is the Internet on the official website of the Courts Service. There you will find a free glossary of legal terms.

It is not important that you read this case at this point. The exceptions given are important:

  • In a conflict between two previous decisions of the Court of Appeals.

    In this situation, the ultimate court must decide which decision to follow and whichcancel. One of the reasons why there may be two previous Court of Appeals decisions that seem to say different things about the same law is that the second of the two cases may simply not have been aware of the first when it made its decision.

  • If a previous decision of the Court of Appeals has been reversed, expressly or by implication, by the House of Lords.

    Obviously, an express override would occur if the House of Lords did indeed treat the Court of Appeals as a precedent, but it is equally possible that a Court of Appeal precedent could be overturned without the actual case being cited and examined. In this situation, the Court of Appeal must follow the decision of the House of Lords, in accordance with the usual rules of precedent.

  • Where the previous decision was madesloppily(Latin for "by mistake").

    In other words, this earlier decision was made in ignorance of any authority, whether in law or case law, that would have led to a different conclusion. In this situation, the subsequent court may overrule the previous decision in question. The lack of authority must be so important that it would have led to a different conclusion; the mere possibility is not enough. There are so many authoritative cases that it is simply not possible to cite them all in a single case. What is decisive, however, is the lack of any consideration of the essential instancessloppily. Cases of decisions ignored by judgment ofsloppilythey are very rare

  • The European Communities Act 1972 gives the Court of Appeal a reason to ignore any of its earlier decisions that conflict with later decisions of the European Court of Justice.

    In fact, this coincides with theeuropean court of justicein the traditional hierarchical structure in terms of precedence as a court of last resortEuropean Unionshe cares.

  • Section 2 of the Human Rights Act 1998 requires all courts and tribunals to record any judgment, decision, statement or opinion of theEuropean Court of Human Rights.

    The Human Rights Act 1998 makes decisions of the European Court of Human Rights directly binding on UK courts. This means that decisions of the European Court of Human Rights will become precedents for UK courts to follow. Any national precedent contradicting a decision of the European Court of Human Rights is now invalid and should not be followed.

3.3.4 Divisional Courts

The legal terminology for these courts is not easy! The Supreme Court is divided into three 'divisions', each dealing with different types of cases: the Family Division, the Chancellery Division (which deals with property and money matters) and the Court of Justice Division. the Queen (who handles cases such as contract settlements). and negligence). However, each of these divisions also has the capacity to act as a court to hear appeals from lower courts, and where judges hold that office, the court is known as the Divisional Court of the Superior Court. Divisional Courts hear appeals from courts and tribunals below them in the hierarchy. They are bound by the teachings ofHe decidedin the usual way and must follow the decisions of the House of Lords and the Court of Appeal. In return, they bind the courts below them in the hierarchy, including common Supreme Court cases. The High Court is also normally bound by its own previous decisions, although in civil matters it may avail itself of the exceptions available to the Court of First Instance. appeal positionYoung gegen Bristol Airplane Co. Ltd(1944). In criminal appeals, the Divisional Court of Queen's Court may refuse to follow its own previous decisions if it considers that the previous decision was incorrect.

Judges and the law: view as a single page (4)

Figure 3: Judges have many opportunities to develop common law

3.3.5 The Supreme Court

The Superior Court is also bound by the decisions of the superior courts. Decisions by individual Supreme Court judges are binding on lower courts in the hierarchy, but such decisions are not binding on other Supreme Court judges, although they are strongly persuasive and tend to be enforced in practice. However, Superior Court judges may disagree and come to different conclusions about the law in a given area. The question then becomes: How will a future Supreme Court justice decide which precedent to follow? It is generally accepted, though it is not a rule of law, that if the later decision did indeed take into account the earlier one and give a reason not to follow it, that is the judgment to be followed by subsequent Supreme Court justices.

Of course conflicting decisions at Supreme Court level can be decisively resolved by going to the Court of Appeals and then, if necessary, to the House of Lords, but when you consider the cost of such appeals it is clear why. important for the Superior Court of Justice. Court judges, if only for economic reasons, do not treat their discretion as a license to destabilize the law in a particular area.

With regard to conflicting judgments at the level of the Court of Appeal, the Superior Court judge shall follow the subsequent decision.

Crown courts, county courts, and magistrates' courts cannot set precedent, and their decisions can never be more than compelling authority.

Caixa 3 Crown Courts, County Courts e Magistrates Courts

The Crown Court handles more serious criminal matters and handles appeals from magistrates' courts. Crown courts are located in over 90 permanent centers across England and Wales, with each center designated as a first, second or third tier, reflecting the seriousness of the offenses charged. County and county boundaries have no legal significance in determining where a case will be heard. Most Crown Court cases are heard at the center most convenient for the Magistrates' Court, which forwards the case to trial.

The County Court deals primarily with civil law and therefore does not fight crime in the same way as criminal courts in England and Wales. Despite their name, county courts do not fall within the boundaries of counties in England and Wales and, in fact, the 230 county courts are spread across the towns and cities that require their services. All property matters up to £30,000, all personal injury claims below £50,000 and bankruptcy matters are dealt with by the district judge in the district court.

About 96 percent of criminal cases are heard before a district court. The case may be heard by at least two, but usually three, lay judges, or by a district judge sitting alone. Until August 2000, these district judges were called fellows, but their name was changed to recognize them as members of the professional judiciary because they are legally qualified and salaried.

Activity 9 asks you to use what you learned in Reading 2, what you've learned so far in this course, and your own everyday experience to summarize the main advantages and disadvantages of the previous one. You might find the reading language a bit difficult, but don't worry. You don't need to understand everything that has been said, just identify and summarize the main strengths and weaknesses of the foregoing.

Activity 9 The pros and cons of precedent

Temporary Coordination:0 hours 45 minutes

Read Reading 2: “The English legal system in context” and answer the following question: What are the advantages and disadvantages of precedent?

click nowon hereto read the Reading 1 document (PDF, 0.1mb, 2 pages).


Have you considered the following pros and cons?


Consistency and fairness in law: Refers to the fact that cases are decided similarly and not according to the whim of the individual judge who decides the case in question. This aspect of formal justice is important to justify decisions taken in specific cases.

Certainty: Lawyers and their clients can predict the likely outcome of a given legal matter in light of past court rulings. Once the rule of law is established in a case, people can act with relative certainty about that rule, knowing that no subsequent court will change it.

Efficiency: refers to the fact that not having to resort to lawsuits saves time for the judiciary, lawyers and their clients. For potential litigants, it saves money on court fees because they can consult their attorney for advice on how their particular case is likely to be decided in light of previous cases on the same or similar issues.

Flexibility: Refers to the various mechanisms by which judges can manipulate common law, allowing law to be developed in specific areas without waiting for Parliament to pass legislation.


Uncertainty - Refers to the fact that the degree of certainty given by the doctrine ofHe decidedit is hampered by the large number of cases that have been reported and can be cited as authorities. With so many rules and slightly different interpretations of them in thousands of cases, it's not always easy to see what interpretation a court will give to the law in your case. This uncertainty is heightened by the judiciary's ability to choose which authority to follow, using the mechanism to distinguish cases on the basis of their facts.

You will see some examples of the uncertainty that case law can create when you try activity 10.

Fixity - Refers to the possibility of the law becoming inflexible in a given area due to an unfair precedent, resulting in the perpetuation of past injustices. An example of this is the long delay before the courts were willing to change the law and make marital rape a crime. Arguments in favor of women who have been raped by their husbands have been made in court since the 1970s, but the law was not changed until 1992 by the House of Lords. We will examine this House of Lords judgment later in the course.

Unconstitutionality - This is a fundamental issue, related to the fact that the Judiciary transcends its constitutional function by making laws instead of limiting itself to the function of mere application. If they are not elected lawmakers, why should they be allowed to make laws?

You might have thought of some other cons. The old system can be slow. An area of ​​the law may be unclear or in need of reform, but that can only happen after the case has come to trial. The Court of Appeal must follow its own previous decisions, but only around 60 cases go to the House of Lords each year. This can result in long waits for a proper case to be appealed to the House of Lords. The system also encourages complexity. Even with online legal databases, finding all relevant case law is not easy. The verdict in a case may be lengthy without a clear distinction between the comments.Relationshipyfor right. We will explain these terms in more detail below.

Judges and the law: view as a single page (5)

Figure 4: There are so many thousands of legal cases reported in the law library that it can be difficult to apply the doctrine of precedent.

Reading 3 is an article that highlights the uncertainty of the law regarding the right of citizens to protect their property. The article analyzes the Tony Martin case and other judicial decisions. You may remember the case of Tony Martin, the Norfolk farmer, who shot and killed a trespasser on his property. As you read Reading 3, keep in mind the conflicting decisions that courts have reached on this unique issue of the right to property protection.

Activity 10 castles built by law

Temporary Coordination:0 hours 10 minutes

Read Reading 3: Castles Built on Laws.

click nowon hereto read the document Reading 3 (PDF, 0.1mb, 2 pages).


Reading 3 illustrates very well why certainty is an important feature of the legal system. The legal situation in this area is quite confusing. In 1996, the Court of Appeal ruled that an unauthorized person engaged in criminal activity can claim damages for injuries suffered if the force used against him exceeds "reasonable limits". Tony Martin was convicted of the murder of a young man who broke into his home after dark.

The court decision in the Tony Martin case contrasts with other court decisions. As I'm sure you've read, between 1300 and 1348, acquittals of heads of families who killed thieves were common. Reading 3 also relates to the Peterborough Crown Court case, where a judge said that a thief who was hit with a baseball bat got what he deserved.

Regardless of what you think about which view is correct, I think you'll agree that the law in this area is very uncertain and contradictory.

3.3.6 Summary of the Precedent System

The basis of the previous system is the principle ofHe decidedand that requires a subsequent court to use the same reasoning as an earlier court when the two cases raise the same questions of law. For example:

  • Decisions of the House of Lords are binding on all other courts in the legal system, except the House of Lords itself.

  • The Court of Appeal is bound by previous decisions of the House of Lords. The Court of Appeal is also generally bound by its own past decisions, with the following exceptions:

    1. if there is a conflict between two previous decisions of the Court of Appeal;

    2. if a previous decision of the Court of Appeal has been overturned by the House of Lords;

    3. whether the earlier decision was taken in ignorance of a legal or judicial authority, which would have led to a different conclusion;

    4. if the previous decision is incompatible with European Community law or with a subsequent decision of the Court of Justice of the European Communities;

    5. Section 2 of the Human Rights Act 1998 requires all courts to take account of any judgment, decision, statement or opinion of the European Court of Human Rights.

  • Divisional courts must follow the decisions of the House of Lords and the Court of Appeal and are usually also bound by their own past decisions.

  • The Superior Court is also bound by the decisions of the superior courts. The decisions of individual judges of the Supreme Court are binding on the lower courts.

Remember, you will also use reading and note-taking skills throughout the course.table 1has been provided to illustrate how this summary could be expressed in an alternative format. You need to find a note-taking style that suits you.

Table 1 The previous system
In focusOther courts are linked to it.Other courts must follow
european court of justiceAll other courts under EU lawno
European Court of Human RightsAll other courts dealing with human rights issues (Section 2 of the Human Rights Act 1998)no
gentlemen's houseAll other courts in the English legal systemCourt of Justice of the European Union on EU law
European Court of Human Rights on human rights issues
Court of AppealEven (subject to some exceptions, e.g.Young gegen Bristol Airplane Co. Ltd(1944))European Court of Justice, European Court of Human Rights and House of Lords
divisional courts
All other lower courts
divisional courtsThey usually have to follow their own previous decisions.European Court of Justice, European Court of Human Rights, House of Lords and Court of Appeal
supreme court
All other lower courts
supreme courtdistrict courtsEuropean Court of Justice, European Court of Human Rights, House of Lords, Court of Appeal, Divisional Courts
district courts
crown courtPossibly district courtsEuropean Court of Justice, European Court of Human Rights, House of Lords, Court of Appeal, Divisional Courts, High Court i.e. all higher courts

Note that both the district court and magistrates' courts do not set any precedent. You are subject to the decisions of all higher courts.

Meu curso OpenLearn W100_2Parliament and LawThere was an opportunity to read an Act of Parliament. In Activity 11, I want to show you how to read a legal process.

Activity 11 Read a case

Temporary Coordination:0 hours 45 minutes

click nowon hereby reading the document (A v Essex County Council) (PDF, 0.2 MB, 23 pages).

Now you should look at the following case:Gegen Essex County Council.

Take a moment to review the case report. At the top of the case you will see citation [2004] 1 FLR. This shows that the report is from the first volume of the 2004 Family Law Reports. (We go into more detail about legal reporting conventions later in this course).

Then you will see the case name:Gegen Essex County Council. A refers to the person or persons who brought the case, in this case the adoptive parents of a young child. To protect his anonymity, the courts named Father A so that the child would not be easily identifiable. brings an action against Essex County Council.

Below the case name is the citation [2003] EWCA Civ 1848. This is known asneutral quote. (You will learn more about neutral citation later in this course.) Below are details of the court and judges who decided the case.

You will then see what is called a caption note, which contains a summary of the facts of the case, followed by an explanation of what the court decided. All this is written by the lawyer who reported the case and whose name appears at the end of the report. Headlines are a very useful summary of the case, but it's not uncommon for headlines to miss a key point. Therefore, law students should always read cases in full (although this is not required for this activity).

Below is a list of the laws and a list of past cases that the decision refers to. "Judgment" (instead of "trial") is not a misspelling; Refers to court decisions or judgments. The length of these lists varies from case to case and can be long or short depending on the issue at hand.

Then the trial itself begins, you don't have to read the trial. The purpose of this activity was to show the physical structure of a legal process. If you wish, you may find it interesting to read the case.

A tip for your studies is to use a highlighter to highlight each case/status name you find in your law school. This makes it easy to find when reviewing a course and also helps you take notes.

Activity 12 requires you to use your Internet skills to access the House of Lords website and review a recent House of Lords decision of your choice. You are asked to note how many Law Lords have passed judgment and how many Law Lords have accepted it.

Activity 12 Trials of the House of Lords

Temporary Coordination:0 hours 20 minutes

  1. Go tohttp://www.supremecourt.gov.uk/ cases decided/ index.htmlJudgments of the Supreme Court of the United Kingdom.

  2. 2. This will give you a list of the most recent decisions of the Supreme Court of the United Kingdom. Take about 15 minutes to review a judgment of your choice. Note how many Supreme Court justices approved the verdict and how many agreed.

It is not necessary to read the judgment in full. However, if you look at the first and last paragraph of each sentence, you will see whether or not each of the judges agrees with the others.


In Activity 12, you will see that every UK Supreme Court judgment involves several justices making a judgment. To be more precise, when a judge of the Supreme Court of the United Kingdom (they are known as judges) delivers a sentence, it is technically known as an "opinion". They may not always agree, and even if they all agree with the final verdict, their reasons for holding that opinion may differ. The question then is, what part of the sentence is binding and sets a precedent? This is what we will examine next.

3.4 Binding precedent

Not everything in a court case sets a precedent. The content of a case report can be divided into two categories:

  • 1. The reason for the decision -reason for the fall

  • Diereason for the fallof a case is not the actual decision, such as "guilty" or "the defendant is liable for damages". Precedent is defined by the rule of law applied by the judge or judges in deciding the legal issue raised by the facts. This rule, which is an abstraction of the facts of the case, is known asreason for the fallfrom Falls (seebox 4).

Table 4 example forreason for the fall

A couple leaves their dog in the car to go to the store. For some reason that cannot be discovered later, the dog becomes excited and jumps up. It is okay that the dog has suffered from dehydration or overheating. The dog scratches the rear window. It breaks and a shard of glass flies out and unfortunately lands in the eye of a passer-by, whose eye must be removed. Is the partner responsible for the damage caused to the man's eye? The court said no. People should be careful to guard against "realistic possibilities". They should only be liable, the court said, if they caused harm to others by doing something that was reasonably foreseeable and likely to cause harm. We are not responsible if we do not defend ourselves against "fantastic possibilities" that happen by chance. The accident in this case, the judges decided, was a "fantastic possibility". Therefore, the couple did not have to pay any compensation. The reason for the decision in this case, thereason for the fall, therefore, can be expressed simply as: If a pedestrian was injured by a dog that broke the window of the car he was in, and if such an incident was not foreseeable, the defendants were not liable.

  • 2.by the way it was said

  • In a judgment of case, any statement of law which is not an integral part of thereason for the fallit is strictly superfluous. Each of these statements is denoted asfor right. That's Latin for "a word spoken while traveling" or "en route" (said by the wayin most). Despitesaid by the wayThe statements are not part of the binding precedent, are persuasive and can be considered in later cases if the judge of the subsequent case deems it appropriate (cf.box 5).

Table 5 example forfor right

In the previous case about the dog and the man injured by broken glass, a judge said that if he knew his dog was prone to getting excited or angry in cars, he would be liable if he hurt someone in a predictable way. (not in the crazy broken window scenario) and you would have to pay compensation. The judge in the dog and car window case didn't have to rule on this because the couple didn't have a dog with a known excitable temperament. Therefore, his observations were made "on the sidelines" and can therefore be described as afor right. In a future case involving an irritable dog, the injured plaintiff's attorney may contact the judge.for righton the car window box and use it as "persuasive" but not "mandatory" authority.

Dividing the cases into these two separate parts is a theoretical procedure. Unfortunately, judges don't really divide their judgments into two well-defined categories, and it's up to the person reading the case to determine which they are.RelationshipIt is. It's a bit like listening to or reading a speech by a politician or the manager of a sports team and trying to figure out what the most important part of the speech was.

In some cases this is not an easy question, and it can become even more difficult when there are three or five judges and each judge gives his lengthy verdict, so that there is no unambiguous verdict.Relationship.

In some cases, it may be difficult to identify the case relationship and distinguish between them.Relationshipdosaid by the way.

Activity 13 provides two illustrative examples of how to identify themreason for the fallof court decisions. These examples make it clear that this is a complex task and that there is no uniform procedure for determining theRelationship.

Activity 13 Identifying thereason for the fall

Temporary Coordination:0 hours 45 minutes

Which is Letter 4: "reason for the fallyfor right“, which examines two legal cases,Carlill gegen Carbolic Smoke Ball Co. LtdyAlcock v. Chief of South Yorkshire Police. Summarize the facts of these cases and identify whatreason for the fallit is case by case. This reading is longer than the previous readings in this course, but the same advice applies to everyone. You should read it once to get a general understanding of the play. Then read it a second time and take notes to help you understand what was said. You may need to read it a third or fourth time if necessary. If you've studied Reading 4, you should have a good idea of ​​what this means.reason for the falla case.

click nowon hereto read the document Reading 4 (PDF, 0.2mb, 4 pages).

(Video) A Recently Appointed Supreme Court Judge Has Not Written a Single Good judgement: Dushyant Dave

I saw examples of howRelationshipyfor rightare determined in Reading 4, Activity 14 requires you to read and summarize Reading 5Relationshipit's himfor rightof the case in question. Reading 5 deals with a dispute that arose over a television advertisement for Guinness. TV commercial,anticipationshowed a dance routine - You might have seen the commercial that aired on TV in 1993-1994. The dispute concerned whether Guinness copied the dance from a short film called Joy. You'll know it's serious business when students copy each other on a test, or when a student is asked to copy another student's homework or pass off another student's work as their own. So you can understand why Joy's creators were so upset by the idea that their work was copied. Reading 5 is shorter and easier than Reading 4. You should still read the article at least twice and try the following exercise.

Activity 14 Pure genius or plagiarism?

Temporary Coordination:0 hours 25 minutes

Read Reading 5: “Pure genius or plagiarism?” and try the following exercise: Summarizereason for the fallysaid by the wayin the Superior Court copyright infringement case brought by Mehdi Norowzian, the director of the commercial, against Guinness and Arks.

click nowon hereto read the document Reading 5 (PDF, 0.1mb, 2 pages).

Judges and the law: view as a single page (6)

Figure 5: Virtually every aspect of what we do can be subject to litigation. When does a dance become a drama?

The word GUINNESS is a registered trademark. © Guinness & Co.


Judge Rattee dismissed the copyright infringement lawsuit. So it was decided in this case.

reason for the fall
  • He decided that although Joy was a point of reference foranticipation, was not a copy of it.

by the way said
  • Judge Rattee focused on what was being filmed and decided that such frantic dancing was not drama.

  • The judge found that Joy was not a "dramatic work" and therefore outside the protection of the Copyright, Design and Patents Act 1988.

Please note that this case was subsequently appealed to the Court of Appeal.

As mentioned above, when passing judgment on cases, judges do not separate or emphasizereason for the fallof the rest of your judgment and this may lead to uncertainty in determiningreason for the fall. This uncertainty is compounded by the fact that the reports of decisions in cases can be very long and, when there are several separate judgments, the judges involved may agree with the decision of the case, but may not agree with the decision. he did. It is up to the judge hearing the case in which a precedent was adduced to determine the balance of powers and thus determine whether or not he or she is bound by the prior case. This factor gives subsequent courts considerable discretion in deciding whether to be bound by any specific authority.

The main mechanisms by which judges modify or avoid precedents are:

  • cancel

  • differentiate.

3.4.1 Cancellation

Annulment is the process by which a higher court overturns a judicial decision rendered in a previous case.

It is strange that within the system ofHe decided, precedents gain authority over time. As a result, courts tend to be reluctant to overrule long-standing authorities, even when they no longer accurately reflect contemporary practices or morality. While the old tenets of dentistry or computer science are generally not good, they are often seen as such in law! Aside from the desire to maintain a high level of legal certainty, the main reason the judiciary is reluctant to overturn old decisions appears to be that overriding works.retrospectively, whereby the suspended legal principle is never considered a right. It may even lead to prosecution of previously lawful conduct. However, it must be emphasized that the courts will not fail to overrule the authorities if they deem that they are no longer appropriate legal statements.

The decision inR contra R(1992), which recognizes the possibility of marital rape, can be seen as an example of this, although even here the House of Lords felt compelled to say that it is not really changing the law, but simply removing a misunderstanding about the which really means .and effect of the law.

As this suggests, the courts are rarely willing to challenge Parliament's legislative rights openly. An example of this reluctance is the decision of the House of Lords tocurry vs. Chief Prosecutor(1994). Children between the ages of 10 and 14 accused of a crime were not supposed to know that what they had done was a serious crime and that prosecutors should present evidence.refutethis conjecture (this conjecture was known as the doctrine ofdoli incapax, which means "incapable of being wrong"). In an appeal against two children convicted of a motorcycle offence, Lord Justice Mann justified the reversal of the presumption by saying that, although it was often accepted as law, it was never really considered by previous courts.

the guess ofdoli incapaxwas abolished in England and Wales by Section 34 of the Crimes and Disorders Act 1998. Before the Act, for a child aged over 10 but under 14 to be convicted of a crime, prosecutors had to to contest the presumption ofdoli incapaxand prove the crime. This meant that they not only had to prove beyond a shadow of a doubt that the child had committed the act in question, but also that they knew what they were doing was seriously wrong and not just rude. To rebut the presumption, prosecutors had to show that the minor knew that the act in question was gravely wrong. Since the 1998 law, the prosecutor no longer needs to prove this.

Because of this reasoning, he felt entitled to depart from previous Court of Appeal decisions that would otherwise have bound him. The House of Lords later reinstated the previous presumption, saying that in any case, to obtain convictions, prosecutors must rebut the presumption that 10- to 14-year-olds do not know the difference between right and wrong. While the Law Lords recognized the problem and indeed appeared sympathetic to Mann LJ's vision, they felt that this significant change was a matter of parliamentary action rather than judicial intervention.

Annulment should not be confused with 'annulment', which is the process by which a higher hierarchical court overturns the decision of a lower court in the same case.

3.4.2 Distinction

Compared to the substitution mechanism, which is rarely used, the main means of avoiding a binding precedent is discrimination. As already mentioned, thereason for the fallin each case on the basis of the essential facts of the case. This opens up the possibility that a court may determine that the facts of the case before it are materially different from the facts of a cited precedent and not feel bound by that precedent. Judges use discrimination when, for some reason, they are unwilling to follow a certain precedent. Legal opinions provide many examples of forced distinctions when a court clearly did not want to follow an authority to which it would otherwise be bound.

3.4.3 Summary of the binding precedent

In this section you saw:

  • that not everything in a court case sets a precedent

  • the difference betweenreason for the fall(the corresponding statement of legal principles) andfor right(discussion of legal principles that are upheld but not relevant to the decision)

  • that the obligatory element in a future case is theRelationshipand that while hefor rightwill never be mandatory, can have strong powers of persuasion

  • the situations in which judges do not need to follow previous decisions:

    • void a previous case

    • Breakdown of a previous case.

Table 2 Summary of the binding precedent
legal termDefinitionComment
reason for the fallThe reason for the decisionThe fair share of judgment - the binding precedent
said by the waythings said on the wayOther parts of the sentence. These may be persuasive, but they do not create laws.
The decisionThe outcome of the process for the parties involved
cancelA decision that a rule of law in a prior case is wrongR contra R(1992) is an example.
DifferentiateA method of avoiding an earlier decision because the facts of the case are different
Activity 15 Courts and Precedents

Temporary Coordination:0 hours 40 minutes

This activity allows you to review your knowledge and understanding of the judicial hierarchy and system of precedents. It is important that you fully understand them. This activity consists of three parts.

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The interactive feature is not available in single page view (view it in standard view).

3.5 Summary of Part B

In Part B you learned the following:

  • the system of precedent requires subsequent courts to use the same reasoning as an earlier court when two cases raise the same legal issues;

  • The content of a case report can be divided into two categories:

    • reason for the fall– the essential legal principles for the decision. TheRelationshipis the binding element of the case

    • for right– any legal statement that is not an integral part of the judgment. Thefor rightit is never mandatory, but may be persuasive to consider in later cases;

  • The main ways that judges can change or avoid precedent are:

    • cancel– if the court overturns a judgment given in a previous case

    • differentiate– If the court distinguishes the facts of the current case as material to previous decisions, the court will not apply the precedent as it is not relevant to the current case.

4Part CCorrect Legal Reports

4.1 Introduction

You cannot cite a judge's precedents and ask them to follow them unless you have a good record of all previous cases and their decisions. Therefore, the operation of a binding precedent is based on the existence of a comprehensive information service that allows access to previous judicial decisions.

This section briefly describes where to find case reports in specific areas of law. This is of particular importance fordefender(usually lawyers, but sometimes solicitors) who have a duty to bring all authorities relevant to the case to the attention of the court, whether they are investigating your case or not, and therefore must conduct a thorough investigation into current reports. It will also be useful for you as a law student.

4.2 Types of reports

4.2.1 Yearbooks (1275-1535)

The first reports of special cases appeared between 1275 and 1535 in so-called annuals. These accounts are of real historical interest as they were originally written in a language known as Legal French. As with common law in general, the emphasis was on procedural issues and forms of defence. Those dedicated to the study of legal history will find the most important cases translated and compiled in the ranks of the Seldon Society or the Rolls series, but in essence they represent a backwater, little navigated by anyone studying modern law.

4.2.2 Private Accounts (1535-1865)

These reports are named because they were produced by individuals and are cited by the name of the person who compiled them. However, they were commercially released for public reference. An ongoing problem with private reports concerns their accuracy. At best, it can be said that some were better, i.e. more accurate than others. Among the earlier reports of particular interest were those by Plowden, Coke, and Burrows, but there are many other reports which are in themselves equivalent to full and accurate reports of the cases brought bytaxatogether with the reasons for the decisions in the individual case. A significant number of private reports have been compiled and published as English reports. The series consists of 178 main volumes: 176 volumes are reports and the last 2 volumes contain an index of all reported cases. Additionally, the reports are accompanied by a helpful wall to make it easy to find individual reports.

4.2.3 Modern reports (1865 to present)

As you've seen, private reporting wasn't without its problems. Aside from at least occasional inaccuracies, publishing could be slow and expensive. This situation was finally remedied with the formation of the Council for Law Reporting in 1865, which was subsequently registered as a body in 1870 as the Incorporated Council of Law Reporting for England and Wales. The board was formed under the auspices of the Inns of Court and the Law Society with the aim of producing reports faster, cheaper and more accurate than ever before.

4.2.4 Legal Reports

These are the case reports prepared by the Incorporated Board of Legal Reports for England and Wales. They have the distinct advantage of containing summaries of the lawyers' arguments and, perhaps most importantly, they can be reviewed by the judges on the case before they are made public. Not surprisingly, Legal Reports are considered the most authoritative reports, and are often preferred over all other reports in court proceedings.

The current Law Reports series, from 1891, is published annually in four parts:

appeal cases(C.A)
office department(CH.)
family department(Family)
king/queen bench(KB/QB)

Of course, delays in notification may result in cases decided in one year not being notified until the following year. Since the beginning of the current series, individual report volumes have the year of publication in square brackets and, if necessary, a volume number. Therefore, cases are cited by the year and volume of their publication rather than by the year of their decision.

4.2.5 Weekly Statutory Reports (WLR citation)

These too have been published by the Incorporated Council on Legal Reports since 1953, and although they are not reports of cases decided in the current week, as the name suggests, they are produced much more quickly than Legal Reports. The need for speed means that these reports do not contain the arguments of the lawyers, nor do they enjoy the benefit of judicial correction before going to print. There are four volumes of cases reported, the last two containing the cases that will also appear in the Legal Reports.

4.2.6 All legal reports in English (Lite all ERs)

These summaries are prepared by Butterworth's legal editor and, while subject to judicial review, do not contain the attorneys' arguments. They appear weekly and are compiled into volumes annually.

4.2.7 Legal magazines and journals

Dielegal magazine(Sol Jo or SJ) has reported cases since 1856 and some cases are only found in their reports. In such cases, reports may be subpoenaed in court. The same applies to cases reported in other journals, such asnew legal magazine(NLJ) or other legal journals.

Judges and the law: view as a single page (7)

Figure 6: The newspaper of lawyers reports cases since 1856

Reports in large-format newspapers (the times, guardyIndependentlyfor example) may also be subpoenaed in such circumstances, provided they are brought by suitably qualified persons (the Courts and Legal Services Act 1990 extended this right to solicitors and solicitors). However, some of these reports are quite insubstantial in nature.

4.2.8 Technical reports

There are several technical reports. There are actually more than can be mentioned here, but the most important ones include:

Magazine on labor relations law(LRLR)
Knight local government reports(LGR)
Lloyd's Law Reports(Rep. de Lloyds)
Report on tax processes(TC Cas order tax)
family law reports(FLR)
Criminal Reports(Cr. App. R)

4.2.9 European Community Reports

Although European cases may appear in the reports considered above, there are two technical reports that refer to EU cases.

  • European Court Records (ECR)

    These are the official reports of the European Court of Justice. As such, they are produced in all official Community languages ​​and therefore experience delays in notification.

  • Common Market Act Reports (CMLR)

    These are unofficial reports published weekly in English by the European Law Centre.

Reports from the European Court of Human Rights in Strasbourg are included in the European Human Rights Reports (EHRR).

4.2.10 DVD-ROM and Internet facilities

As in most other fields, the growth of information technology has revolutionized legal reporting and legal discovery. Many of the above legal reports are available on DVD-ROM and on the internet from legal databases such as Justis, Lawtel, Lexis-Nexis and Westlaw UK. However, many of these databases require you to register and service fees may apply. Alternatively, they may be available free of charge to university students enrolled in recognized and accredited courses. You will find that many case databases are not available to you.

The first major electronic case database was the Lexis system, which provided instant access to a wide range of case authorities, some not reported elsewhere. The problem for the courts was that lawyers with access to the system could simply cite lists of cases from the database without the courts having access to hard copies of the decisions. The courts soon expressed their displeasure at this indiscriminate citation of undeclared numbers from the Lexis database (cf.Stanley Gegen International Harvester Co. of Great Britain Ltd.(1983)).

Judges and the law: view as a single page (8)

Figure 7: Many reports can be found online

4.2.11 Neutral quotation

As the entire legal system has continued to modernize, the way cases are cited has changed. Since January 2001 a new neutral system has been introduced and cases in various courts are now cited as follows ('EW' stands for England and Wales):

gentlemen's house[what] Caso UKHL nº.
Court of Appeal
Court of Appeal (Civil Chamber)[Ano] EWCA Civ Case No.
Court of Appeal (Criminal Chamber)[year] EWCA criminal case no.
supreme court
office department[year] EWHC case no. (CH)
patent court[year] EWHC case no. (Defeat)
Administrative Court[year] EWHC case no. (Administrator)
Commercial break[year] EWHC case no. (Come over)
Admiralty Court[year] EWHC case no. (allowed)
Technical and Constructive Court[year] EWHC case no. (TCC)
family department[year] EWHC case no. (Family)

In the individual case, the paragraphs of each sentence are numbered consecutively; in the case of several sentences, the paragraph numbering continues consecutively. For example, the neutral quote forInternational Transport Roth GmbH Gegen Secretary of State for the Ministry of the Interioris [2002] EWCA Civ 158 and if you look up Simon Browne LJ's quote from the case you will find it at paragraph 53. The specific series of Legal Reports reporting the case is at [2002] 3WLR344.

4.3 Summary of Detailed Legislative Reports

This section has emphasized the importance of accurate legal information that allows legal principles to be collected, identified and made accessible. I researched where case reports can be found in specific areas of law. These are:

  • Annuals (1275-1535)

  • Private Accounts (1535-1865)

  • Modern accounts (1865 to present)

  • He informs her

  • Weekly statutory reports (WLR citation)

  • All legal reports in English (Lite all ERs)

  • Legal magazines and journals.

  • technical reports

  • European Community Reports

  • DVD-ROM and Internet facilities.

4.4 Summary of Part C

In Part C you learned the following:

  • Accurate legal reports allow compilation, identification and access to legal principles;

  • There are many sources for legal reports: annuals (1275-1535), private reports (1535-1865), modern reports (1865 to date), Law Reports, Weekly Law Reports, All England Law Reports, law magazines and journals, About the European Community reports available on the Internet, DVD-ROM and legal databases.

5 Part D The need for legal interpretation

5.1 Reasons for unclear meaning

The meaning of the law in a law must be clear and concise, but this is not always achieved. Therefore, many cases brought to court involve disputes over the meaning of a word or phrase in a law. In these cases, the court's job is to determine the exact meaning of that particular word or phrase. There are a number of factors that can lead to unclear meaning.

  • another term- There may be words intended to cover multiple possibilities and it is up to the user to judge which situations fit them.

London and North Eastern Railway Company contra Berriman[1946] 1 Todo ER 255

Mr. Berriman was a railroad worker who was hit and killed by a train while doing maintenance work. The regulations stated that a lookout post was to be provided for men working on the other railway line "with the purpose of relaying or repairing". Mr. Berriman maintained the lead. His widow tried to claim compensation for his death because the railway company had not provided her with a security guard. The court ruled that the relevant ordinance did not cover maintenance work and therefore Ms. Berriman failed.

The Court dealt with the specific wording of the regulation and did not want to address the general principle that the purpose of a regulation requiring the installation of a guard post was to protect workers on the railway lines.

  • ambiguity– A word can have two or more meanings and it may not be clear which one to use.

  • an editing error– The Parliamentary Council that drafted the original bill may have made a mistake that went unnoticed by Parliament. This is more likely to be the case when a bill has been amended multiple times during debates.

  • The wording may be insufficient– The wording can be inappropriate in many ways, for example, a typo or other error such as using a broad meaning word that is not defined.

  • new developments– New technology may mean that an old Act of Parliament obviously does not cover current situations.

  • changes in language use– The meaning of words can change over the years.

  • Certain words are not used- Rapporteurs may omit the use of certain words that they consider to be implicit. The problem here is that users might not realize this is the case.

  • Lack of legislation to cover a specific point– The legislation may have been worded in detail, with the rapporteur trying to cover all possible eventualities. However, situations not expressly foreseen may arise. The question then is whether the court should interpret the legislation to include the missing situation or whether it should limit the legislation to the precise points laid down by Parliament.

Brock contra DPP(July 23, 1993)

In the Dangerous Dogs Act (1991 SI) there is a phrase "any dog ​​of the type known as a pit bull terrier". This led to a debate over whether 'type' meant the same thing as 'race'. At theBrock, the Queens Bench Divisional Court held that "type" had a broader meaning than "breed" and could include dogs that were not purebred Pit Bulls but exhibited a significant number of the characteristics of such a dog.

In all legislation there is the possibility that words and phrases generate uncertainties that can only be resolved through judicial interpretation. This interpretation is a creative process and inevitably involves the judiciary in the process of seeking justice.

The question arises of what techniques judges should use since they need to define this term or phrase. A set of rules has been developed to assist judges in this process, the Rules of Interpretation. These were drawn up by the judges themselves over the centuries and Parliament had no role in their development. However, it can be argued that Parliament remains the supreme legislative body. If you don't like the definition created by the court, you can choose to pass new legislation that reverses the court's decision.

5.2 Summary of Part D

Part D looked at several of the reasons why a word or phrase in an Act of Parliament might have an unclear meaning. This is illustrated with a series of examples. The interpretation of these words or phrases becomes the task of the courts. In this role, it can be argued that the courts are involved in the legislative process, as they have a duty to interpret and define a law.

6 Part E The Rules of Legislative Interpretation

6.1 Introduction

In this part, we will examine the number of rules that courts have developed to help interpret a law. These are:

  • the literal rule

  • the golden rule

  • the rule of evil

  • the directed approach.

    (Video) Judges and the judiciary

Each of these rules takes a different approach to interpreting a law. Some judges prefer one rule while other judges prefer another. Some judges also believe that it is their job to fill in the gaps and ambiguities in the law, while others believe that this should be left to Parliament as the supreme legislator. As the rules can lead to very different decisions, it is important to understand each one and how to use them.

6.2 The literal rule

Under this rule, the judge considers what the law actually says, not what it might mean. For this, the judge will give a literal meaning to the words of the law, that is, their simple and everyday meaning, even if this leads to a result that could otherwise be seen as unfair or undesirable. The literal rule is that the intention of Parliament is best found in the common and natural meaning of the words used. As the democratic legislative part of the state, Parliament must make it clear that it wants to enforce exactly what it says in its statutes. Allowing judges to give obvious or non-literal meaning to words in the Act of Parliament goes against the will of Parliament and therefore the people. Lord Diplock once commented:

When the meaning of legal words is clear and unequivocal, it is not up to judges to invent imaginary ambiguities as an excuse for not realizing their clear meaning, considering the consequences to be untimely or even unfair or immoral.

Duport Steel gegen Sirs (1980)

The use of the literal rule is illustrated by the caseFischer contra Bell(1960). The Offensive Weapons Restriction Act 1959 made it a crime to offer certain offensive weapons, including knives. James Bell, a Bristol merchant, displayed such a weapon in the window of his shop in the Broadmead gallery. The Divisional Court ruled that he could not be convicted because Mr. Bell did not offer the knives for sale in order to give the statute's words a limited literal meaning. In contract law, technically placing something in a store is not an offer to sell; it is simply an invitation to treatment. (A request for an offer is an invitation for others to make an offer, such as displaying products in a store window.) It is the customer who offers the store an offer when they offer money for an item for sale. The court confirmed that the dealer had not made an offer to sell in the literal sense of the offer and was therefore not guilty of the offence. Parliament then changed the law to make it clear that displaying a switchblade knife in a shop window is a criminal offence.

The literal rule has advantages and disadvantages. Constitutionally, it respects parliamentary supremacy and the right of Parliament to make whatever laws it wants, no matter how absurd they may seem. It also encourages accuracy in wording and ensures that anyone who can read English can determine the law, which promotes legal certainty and reduces litigation. However, some disadvantages can also be identified. He fails to recognize that the English language itself is ambiguous and that words can have different meanings in different contexts. Sometimes, the application of this rule can lead to absurdities and loopholes that can be exploited by an unfounded litigant. Judges tend to overemphasize the literal meaning of legal provisions without giving due weight to their meaning in a broader context. Emphasis on the literal meaning of words requires unrivaled perfection in design. Finally, ignore language limitations.

6.3 The golden rule

This rule is a modification of the literal rule. It states that if the literal rule leads to an absurdity, the court must seek a different meaning of the words to avoid that absurd result. The rule was strictly defined by Lord WensleydaleGray contra Pearson(1857) HL Cas 61, which stated:

The grammatical and ordinary sense of the words must be respected, unless this leads to some absurdity or disagreement or inconsistency with the rest of the instrument. In that case, the grammatical and ordinary sense of the words can be modified to avoid absurdities and inconsistencies, but nothing more.

The rule was used in the case ofeagle vs george(1964) to avoid an absurd result. Under Section 3 of the Official Secrets Act 1920, it was an offense to obstruct HM Forces near a prohibited location. In fact, Mr. Frank Adler was arrested obstructing such forces in such a forbidden place (Markham Royal Air Force Station, Norfolk). He argued that he was not near a prohibited location because he was in fact in a prohibited location. The court applied the golden rule to expand the literal wording of the law to cover the act committed by the defendant. If the literal rule had been applied, it would have led to absurdity, as whoever protested near the base would commit an infraction and whoever protested there would not.

Re Sigsworth(1935) concerned a case in which a son had murdered his mother. The mother had not made a will and, according to the Administration of Justice Act 1925, her estate would be inherited by the next of kin, ie her son. There was no ambiguity in the wording of the law, but the court was unwilling to allow the son who murdered his mother to profit from his crime. It was said that the literal rule should not be applied, and the golden rule should be applied to prevent the son's loathsome situation from inheriting.

The golden rule does not provide a clear means of proving the existence or magnitude of an absurdity. It seems to depend on the outcome of each case. So while the golden rule has the advantage of avoiding nonsense, it has the disadvantage of not having a test to determine what is nonsense.

6.4 The rule of misfortune

This third rule gives the judge more discretion than the literal rule or the golden rule. This rule requires the court to examine what the law was before it was passed to determine what loophole or absurdity the law was intended to fill. The court must then interpret the law to ensure that the loophole is filled. The rule is contained inremains of heydon(1584), who states that there are four things to consider for the true interpretation of a law:

  1. What was common law before law was made?

  2. What was the error and deficiency which the common law did not provide for?

  3. What remedy did Parliament decide and recommend to cure the Commonwealth's disease?

  4. The real reason for the remedy; and then it is the work of the judges to make such constructions as to suppress the evil and propose the remedy.

This rule gives the court the justification to go beyond the letter of the law to consider the problem the law was intended to solve. On one level, it is clearly the most flexible rule of interpretation, but it boils down to using prior common law to determine what malpractice the law in question was intended to correct. The case itself concerned a dispute over the laws enacted by Henry VIII in 1540 and a lawsuit against Heydon for encroachment on certain lands in the county of Devon.

An example of applying the damage rule can be found in the case ofCorkery v. Zimmerman(1951). In 1951, Shane Corkery was sentenced to one month in prison for riding his bicycle in public while intoxicated. Around 2:45 pm. On 18 January 1950 the defendant was drunk pushing his bicycle down Broad Street in Ilfracombe. He was subsequently charged under Section 12 of the Licensing Act 1872 for being drunk to a carriage. The 1872 Act didn't actually refer to bicycles. The court decided to use the calamity rule to decide the matter. The purpose of the law was to prevent people from using public transport of any kind while intoxicated. The bicycle was clearly a means of transport and therefore the user was charged correctly.

6.5 The targeted approach

This approach has emerged more recently. Here, the court is not just looking to see where the loophole was in the old law, but is making a decision about what it thought Parliament was trying to achieve. Lord Denning in the Court of Appeal stated inMagor and St Mellons Rural District Council v Newport Corporation(1950), "we sit here to discover the intent of Parliament and ministers and to carry it out, and we do this best by filling in the blanks and making sense of the decree, opening it up to destructive analysis".

This attitude was criticized on appeal by the House of Lords. Lord Simmons called this approach "a naked usurpation of the legislative function under the thin cloak of interpretation". He went on to say that "when a loophole is discovered, the remedy is in an amendment bill".

These comments highlight a problem with the specific approach. How to determine Parliament's intentions and whether judges should really refuse to follow Parliament's clear words. The specific approach is used by most continental European countries when interpreting their own legislation. This is also the approach taken by the European Court of Justice when interpreting EU law.

Since the UK became a member of the European Economic Community in 1973, the influence of the European preference for the specific approach has influenced English courts in a number of ways. First, the courts had to accept that, from 1973 onwards, the specific approach would be applied when deciding EU issues. Second, they get used to using the specific approach of EU legislation and are more likely to use it to interpret national legislation. an example isPickstone gegen Freemans plc(1998). Here, female clerks are paid the same as male clerks. However, Miss Pickstone asserted that the work of the warehouse workers was of equal value to that of the warehouse controllers, who earned £1.22 a week more than they did. Employers argued that a warehouse worker was employed in the same job as warehouse workers and could not claim work of equal value under Section 1(2)(c) of the Equal Pay Act 1970. This was a literal interpretation of the 1970 Statute The House of Lords ruled that the literal approach would have resulted in the UK in breach of its treaty obligations to implement an EU directive. Therefore, he applied the purpose-based approach and concluded that Ms. Pickstone had rights based on work of equal value, despite the fact that a male employee was doing the same job as her.

In applying any of the rules of interpretation of the law, the courts may resort to a presumption or secondary decision-making aids.

6.5.1 Premises

In determining the meaning of certain words, courts will make certain assumptions about the law. When the law clearly states the contrary, the presumption is not valid and is said to be refuted. The main assumptions are:

  1. A presumption against changes in common law.

    Common law is presumed to apply unless Parliament has made it clear in law that customary law has been changed.

  2. An assumption thatthe real men('guilty thinking') is required in criminal cases.

    Male Salesit is one of the elements that must be proved for a successful prosecution. There is a rule of common law that no one can be convicted of a crime unless it can be shown that they had the requisite intent to commit it.

  3. A presumption that the Crown is not bound by any law unless the law specifically says so.

  4. Presumption that a law does not apply retroactively. No law applies to past events. Normally, each law only applies from the date it comes into effect. However, this is just conjecture and Parliament may choose to pass legislation retrospectively. However, this must be expressly stated in statutes, for example the War Damages Act 1965, the War Crimes Act 1991 and the Adoption Act 1976.

Secondary tools are language rules, intrinsic and extrinsic tools.

6.6 Language rules

Courts may also choose to examine other words in the law to determine the meaning of specific words. To enable them to do this, they have developed a set of language rules that help clarify the meaning of words and phrases. There are three main language rules:

  • the same type

    This rule states that when there is a list of words followed by general words, the general words are restricted to the same type of items as the specific words. In case ofPowell contra Kempton(1899) BC 143, a quadrilateral in a hippodrome was not considered to be included in the terms "house, office, room, or other place" because the word list indicated that "else place" was to be interpreted as an interior place.

  • The expression of one is the exclusion of the other.

    Where the explicit mention of one thing excludes others. If there is a list of words that are not followed by common words, the law only applies to items on the list. In case ofR v residents of Sedgley(1831), the use of the words "land, houses, and colliery" precluded application to other types of mines.

  • It is recognized by partners.

    A word is known by the company that supports it. The words must be seen in their context and interpreted accordingly. This includes considering other words in the same or other sections of the law. In case ofMuir vs Keay(1875) LR 10 QB 594, the purpose of granting licenses for theatrical or musical performances did not fall within the wording of the Act covering establishments "for public refreshments, recreation and entertainment", since the word "entertainment" in the Act was it referred to refreshment establishments, receptions and accommodation of the public.

6.7 Personal Resources

Intrinsic aids are matters within a law that can help clarify meaning. The court may consider the long title, the short title, and any preamble. Other useful aids might include headings before a group of sections and any calendars attached to the law. Often there are also marginal notes explaining various sections; However, these are generally not considered a declaration of intent by Parliament, as they were inserted after parliamentary debates and are only useful comments from the printer.

Some laws contain sections that specifically define words. For example, Section 5(2) of the Animal Pensions Act 1963 states: "In this Act, animal means any dog ​​or cat." that contain the masculine gender Meaning also includes feminine and words that import feminine gender also include masculine. Furthermore, singular words also include the plural, and plural words include the singular.

6.8 External help

Third party tools are things that can help put a law in context. Sources include previous Acts of Parliament on the same subject, past case law, contemporary dictionaries, and the historical framework. Also, Hansard can now be taken into account. Hansard is the authoritative account of what was said in Parliament when the bill was debated. The use of Hansard was allowed after the decision inPepper (tax inspector) vs. Hart(1993), where the House of Lords accepted that Hansard could be used on a limited basis. Allows the use of hansard when the legislation is ambiguous, unclear or unreasonable and the material on which it is based includes one or more statements by a minister or other supporter of the bill and other parliamentary material relevant to the bill is required. the explanations, the effect and the assertions on which it is based must be clear.

Third party aids also include international conventions, regulations or guidelines implemented by English law. It is understood that English law must be interpreted consistently with international law. Article 3 of the Human Rights Act 1998 expressly states that, as far as possible, a law must be interpreted and implemented consistently with the rights enshrined in the European Convention on Human Rights. This only applies to cases involving human rights.

6.9 Summary of Part E

rule, approach or helpCommentcases
the literal ruleIt uses the simple and ordinary grammatical meaning of words and avoids judicial legislation, but it can lead to absurd decisions and injustices and demands unattainable perfection in the art of writing.Fischer contra Bell(1960)
the golden ruleThis starts with the literal approach, but avoids nonsense or inconsistencies, and the court can change or add words. The scope is limited and there is no definition or measure for nonsense.eagle vs george(1964)Re Sigsworth(1935)
the rule of misfortuneThis analyzes the gap in the previous rule and interprets the words to advance the remedy. It comes very close to the specific approach and was favored by the Legal Commission in a review of the rules of interpretation of the law.Corkery v. Zimmerman(1951)
The targeted approachSeeks the intent of Parliament and allows judicial legislationPickstone gegen Freemans plc(1998)
language rulesConsider other words in the bylaws: common words that follow a list are similarly restricted; a list of words that are not followed by a common word is restricted to the elements of the list; a word is known by the company that maintains it
own toolsLaw stuff, especially short or long title, preamble and definition, sections. Also Interpretation Act 1978
foreign aidThings outside the statute that help put it in context, e.g. previous statutes, hansard, international conventions

7 Teil F Common law, equity and statutory law

7.1 Assets

This term refers to a specific division within the English legal system. As the common law advanced, a formality developed among judges characterized by a reluctance to deal with matters that were not dealt with in the proper form of action or that could not be dealt with. Such refusal to deal with injustices that do not fit into special rules of procedure and form generated great dissatisfaction with the legal system. A modern analogy would be with a company or government agency refusing to process your complaint because none of the available forms are suitable, even though they obviously made a mistake. Furthermore, common law courts were considered slow, highly technical and very expensive, and a small error in presenting a case could lose a good argument. The only remedy available was compensation, but monetary compensation was not always the best remedy. How could people get justice if not in the common law courts? The answer was equity development.

Claimants (then called plaintiffs) who did not have access to the common law courts could appeal directly to the Sovereign, and such claims were referred to the Lord Chancellor, acting as "the king's conscience", for consideration and decision. The Chancellor based his decisions on the principles of natural justice and fairness, deciding on what felt "right" in each individual case rather than looking to past precedent. I would look beyond documents held by common law courts to make them legally binding. To ensure that their decisions were fair, new procedures were developed, such as a subpoena that compels a witness to appear in court, and new remedies, such as injunctions and special benefits. This led to the emergence of a special court, the Court of Chancery, formed to make "fair" or "fair" decisions in cases that common law courts were unwilling to handle. The Court of Chancery takes its name from the fact that the court was under the control of the Lord Chancellor. The Court of Chancery was the Court of Chancery intended to provide remedies that were not available in the common law courts.

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

  • They had to prove that they could not get justice in the common law courts.

  • They had to prove that they were not the culprits. This was called "coming to trial with clean hands". In contrast, plaintiffs who appealed to the old common law courts did not need to prove that they were morally innocent.

  • They had to show that they didn't hesitate to take the case to court.

The common law courts and the Court of Chancery functioned separately. Occasionally this led to conflicts, with the common law courts ruling in favor of one party and the Court of Chancery in favor of the other party. This situation was resolved with the case of the Earl of Oxford (1615), when the king decided that justice would prevail in such cases. The separation between the courts of common law and the courts of equity continued until they were finally combined by the judicial acts of 1873-5. Before this legislation, it was imperative that a party presented its case before the competent court: for example, the courts of customary law did not apply the principles of equity, so if a precautionary measure was requested, the case had to be heard in The court. If damages were claimed, the case would have to be tried in the common law courts. However, the statutes provided that each court had the power and duty to decide cases in accordance with common law and equity, the latter being fundamental in the final analysis (Section 25 of the Judiciary Act 1873).

Table 3 Anglo-Saxon law and equity in comparison
common lawcapital social
Originally operated the teaching ofHe decidedstrict. This meant that the law did not evolve even when it clearly needed change.The Lord Chancellor of the Court of Chancery was not bound by precedent. The rules were established to ensure fairness.
Strict procedural rules were observed.Rules and maxims of justice were developed. These were flexible to ensure balance and fairness.
The only remedy available was damage.He recognized the limits of the usefulness of money and created new legal remedies, including specific injunctions and writs of execution.

7.2 Statute and common law

“Customary law” refers to the substantive law and procedural rules established by judges through the decisions they hear in cases before them. I have grouped here two types of customary law: substantive law and procedural law. Let me explain the difference between them.

A substantive rule is a rule about our conduct, for example that if we do this and that in an email exchange, we cannot commit murder or enter into a contract. These substantive rules differ from procedural rules, as the latter merely regulate how things should be done. For example, regardless of the type of court proceedings, the rules for admitting evidence in court are the same.

Statutory law, on the other hand, refers to the law created by Parliament in the form of laws. Although the law has grown significantly in the 20th and 21st centuries, the courts continue to play an important role in making and enforcing laws in general and in determining the enforcement of laws in particular. This is despite the fact that there is no explicit legislative or democratic authority for the court to legislate.

Activity 16 requires you to read an article that discusses the role of Parliament and the role of the courts in making laws. This article is longer than previous reads, but don't let that put you off. You will be familiar with the ideas discussed in the reading.

Exercise 1 asks you to apply your understanding and knowledge of common law and describe the importance of the common law system being flexible and secure. You will then be asked to weigh and evaluate the arguments and say whether you think the 'equity computer' discussed in Reading 6 should replace customary law. It's not about finding the "right answer", any more than there is a scientific "right answer" for which is the best political party or soup! It is about being able to justify a point of view that has been reached.

Activity 16 Making laws: using precedent

Temporary Coordination:1 hour 0 minutes

click nowon hereto read the document Reading 6: “Law Factories” and complete the three exercises (PDF, 0.2 MB, 5 pages).

Exercise 1

Temporary Coordination:0 hours 20 minutes

Explain why the common law requires a balance between certainty and flexibility. Do you think it would be better if the common law were replaced by a 'justice computer' like the one illustrated in Lecture 6?



Certainty is needed so that people can plan their behavior and lawyers can advise their clients. So the House of Lords didn't change a thing in 1995doli incapaxRule on the Criminal Liability of Children. In the case of Private Clegg, the Lords also opposed any amendment to the Self-Defense Act in 1995.

Therefore, the legal system must reconcile these two conflicting but equally legitimate objectives. Introducing a "justice computer" would ensure certainty, but would take away flexibility from the legal system.


Common law must be flexible to respond to changing times. Lord Hobhouse noted that common law "evolves as circumstances change and the balance of legal, social and economic needs changes". for example inR contra R(1992) the House of Lords saw fit to abolish the then 256-year-old rule against the charge of marital rape. also inpepper x hard(1993), the Lords Appeal Committee overturned a 223-year-old constitutional rule that barred courts from consulting Hansard in support of interpreting the Act.

exercise 2

Temporary Coordination:0 hours 20 minutes

Having considered why certainty and flexibility are important, describe how certainty and flexibility are introduced into the common law system.



the responsibility ofreason for the fallcreates a basis of certainty.


Flexibility is introduced by:

  • Annulment: When higher courts can overrule lower courts in cases where the later court considers that the earlier court made an erroneous analysis.

  • Distinction: when a lower court can point to material differences that justify the application of different principles.

  • Deviation: where a court may, under certain circumstances, deviate from its own previous decision. This can be done, for example, when times have changed since the earlier ruling which now appears to be binding on the courts.

Until 1966, the House of Lords was subject to its own decisions. In 1966, the Lord Chancellor issued a Statement of Practice stating that the House of Lords can deviate from its own previous decision if it is correct. The reason given was to avoid injustices and restrictions on the development of the law.

The Court of Appeal may deviate from previous decisions if one of the exceptionsYoung gegen Bristol Airplane Co. Ltd(1944) established. The Court of Appeal may also deviate from a previous decision if that decision was madesloppily(by carelessness) because it was taken in disregard of relevant legislation or the decision of the House of Lords, resulting in a manifestly incorrect decision. In criminal matters, the Superior Regional Court may depart from a previous decision if its compliance results in manifest injustice.

exercise 3

Temporary Coordination:0 hours 20 minutes

Again, based on your knowledge and understanding of this course, summarize the pros and cons of a previous system. You should take some time to review your notes from previous activities and perhaps re-read part of the course.


Have you considered the following pros and cons?


  • Precedent allows the legal order to become “fairer” because the law is right, so everyone knows what the law says on any subject.

  • The certainty of precedent is tempered by the judges' flexibility in not continuing with previous cases.

  • The precedent is more practical: the law can be modernized without Parliament having to legislate.


  • Legal development depends on the "accidents" of legal disputes, i. h Courts decide the law only in cases brought by citizens.

Legal development is hampered by the need for certainty.

7.3 Summary of Part F

In Part F we compare and contrast:

  • common law and equity

  • common law and statutory law.

8 Part G Common Law and Civil Law Systems

8.1 The differences between common law and civil law

After exploring the origins and development of the common law and its characteristics, the final part of this course will compare and contrast common law with civil law systems.

The terms common law system and civil law system are used to distinguish two different legal systems and legal approaches. The use of the term 'common law' in this context refers to any legal system that has inherited the historic English legal system. First is the United States, of course, but many other Commonwealth and ex-Commonwealth countries maintain a common law system. The term "civil law" refers to other jurisdictions that have adopted the continental European legal system, which derives essentially from ancient Roman law but is largely due to the Germanic tradition.

The usual distinction between the two systems is that the common law system tends to be case-centric and therefore judge-centric, allowing for a discretionary and pragmatic approach to the specific issues that come before the courts. The law can be developed on a case-by-case basis. The civil law system, on the other hand, is more of a codified set of general abstract principles that govern the exercise of judicial discretion. In reality, these two views are extremes, as the first overestimates the degree to which common law judges can exercise their discretion and the second underestimates the degree to which civil law judges have the power to exercise their discretion. discretionary. It is perhaps worth noting here that the European Court of Justice, which in theory was based on civil law principles, in practice increasingly recognizes the advantages of establishing a jurisdiction. The Court of Justice of the European Communities is not bound by the application of the doctrineHe decided, still does not decide on individual cases without resorting to its previous decisions.

Activity 17 Common Law

Temporary Coordination:0 hours 25 minutes

This activity builds on what you just read about the differences between common law and civil law. It's an excerpt from BBC Radio 4unreliable evidenceProgram that aired in 2004. You can take notes while listening. In particular, listen to what is being said about the relationship between the common law and civil law systems.

"Common Law" Part 1

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mischal hussain

In England, the legal system is based on common law. Over the centuries, English judges unified and developed the law using a system of established precedent and practice. In contrast, civil law forms the basis of most legal systems in the rest of Europe. Civil systems often have a code of laws that sets out basic rights and duties, and in some cases goes directly back to Roman law. In 2004, the BBC's Unreliable Evidence began investigating the differences between the two systems. Here, moderator Clive Anderson introduces his panel of experts.


To discuss the common and the uncommon, the civil and the uncivil, I partner with Conrad Schiemann, one of the English judges of the European Court of Justice. Hugh Mercer is a lawyer specializing in EU competition law, international public and private law. He has acted in cases involving the European Commission. Professor Basil Markesinis, a former participant in this program, is one of the leading specialists in comparative law. Professor John Bell is another distinguished academic expert, currently Professor of Law at Pembroke College, Cambridge. Well, a respected body. Professor Markesinis, as an ordinary person, perhaps an ordinary litigator, would you say the difference between a court based on history as civil law or common law?


I would put it this way: the oracles of law, the people who tell us what the law is, are the academics and universities in continental European systems and the professionals and judges in the common law system. And that's a very important distinction, because academics are looking for system, logic, structure and theory, so they tend to be systems builders. While our lawyers are practitioners. They look for the problems and try to find the right remedies. So you are a problem solver.


What analogy would be drawn between the way a village or town in England might develop, using old roads and gradually building a new town instead of one, laid out in a grid pattern.


Yes, I think it's fair to say that our system evolved gradually without the kind of structure that European systems had from the beginning, mainly for the reasons you mentioned. The legacy of Roman law. But these differences are attenuated in practice and I think we are all starting to walk together. There is a give and take, we adapt to their ideas and they adopt many of ours.


Can I speak to Professor John Bell now? I have already mentioned that academic lawyers are more respected in civil law. Are you excited that, as a professor of law, your opinions can carry more weight with English judges as they approach decision-making?

(Video) Judicial corruption: The UK's judges affronting the law and defrauding in the name of justice


Certainly some English lawyers already have considerable weight among English judges. And I think the pattern in so-called civil justice systems is really very different. In the areas in which I specialize, namely administrative law and public law, most European systems are created according to developed principles, often the main authors of teaching are professionals and not academics.


So is there a distinction?


So that blurs the distinction. I think it depends a lot on the area of ​​law you work in. In private law, which tended to develop out of Roman law. These principles were first taught at universities and then passed on to professionals. In public law, which is the basis of the European Convention on Human Rights, and also in constitutional law, which also relates to the European Union, there are many influences from practice and the debate between professionals and academics is very fruitful. So I think what's already happening is that there's a lot more mixing in civil justice systems than the stereotypes that we tend to use indicate.


Well, Hugh Mercer is a practitioner in this area of ​​law and he's just dying to say something.


If you look at the European Court of Justice, where, of course, Justice Schiemann sits, since, especially since 1973, this court has been building what amounts to a common law system. A system based on established case law. Influenced by academics, but academic authors may not have the same power as in the normal civil law system. One case that came to mind was Trans Oceanic Paint, one of the first cases heard from the right. The European Commission has taken a decision granting an exemption to a company subject to certain conditions attached to the exemption. And the company in question was not consulted about the conditional content. And Advocate General Warner, the British Advocate General at the time, looked at the different systems, found the French, Belgian and Italian systems fundamentally deficient on that point, removed the rule [LD alder impartum?] from English law and applied it as a rule of Community law.

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Clive Anderson

A very English sounding rule he introduced. In any case, you paint a good picture of the law's relevance there. But may I ask Judge Schiemann of the European Court of Justice if it makes a practical difference for you to sit there as a judge? Did you have to adapt your assessment methods to the European approach?


oh a lot At first glance, the procedural situation here is very different due to language problems. We are now a nineteen language community, which means we can address the courts in any of nineteen different languages ​​with simultaneous translation, which is a huge inhibition when the law is written in the courts in the same way it has been written. , done traditionally. So it was made in England.

Clive Anderson

Well, any flowery lawyer would find it quite irritating to have his words translated, and a closer reading of the law would also discover that arguments need to exhaust translation points. Does it cause problems?


If that happen. Because of this, we are much more dependent on written material that may also need to be translated, but there is more time for translators to find the right word and also for the national judge who speaks that language to do that to qualify it. as needed. But there is a language problem that affects in part the use of the words themselves, but also in a more cultural sense, sometimes in the cold conceptual way of speaking. I think when I got here, I had a little fun with the fact-based approach that the British used to take to court to go from the facts of a case to the main decision, rather than doing what is kind of theory. . it requires one thing to do, which is to consider the abstract point, which is perhaps more in the French tradition.

Clive Anderson

Therefore, it could be reinforcing the idea that the English legal system is what? More realistic, more solid, less theoretical?


Well, all of that might be exaggerated. Ultimately, all of our societies face the same kinds of tensions, the resolution of which is up to the law. Tensions between freedom of contract and consumer protection. Let lenders set the interest rates they want or set maximum rates. This goes back to the Romans. Tensions between freedom of expression and freedom to take to the streets. Tensions between the legislator's freedom to legislate and the desire to protect the minority from the legislator's moment of oppression. And we all tend to encounter very similar examples, albeit through slightly different processes.

Clive Anderson

Professor Markesinis, would you say there is another one, which we could describe as a convergence between the different European systems, the English system, the French system, the German system and everything else? Will they all come together in some sort of European legal framework?


I would definitely think it's a convergence. It's a piecemeal approach, it's an incremental approach that really fits our mindset, our legal mindset. And the reason why it's there is very simple. We see a convergence of tastes and habits. Everyone drinks cappuccino instead of tea these days. We wear the same clothes, drink Coca-Cola, eat McDonald's, tastes, customs, habits change, the law too. But then there is the phenomenon of globalization. There's the fact that more and more companies are doing business across borders, and where companies go, lawyers often follow.

Clive Anderson

Professor John Bell.


I would add two things to that. Firstly, in public law, we have very common rules in the European Convention on Human Rights, where people work as a team before the Strasbourg court to try to create rules that can be applied to different countries. So now we're seeing cases in England that are controversial in Austria or Turkey. So that's one thing. And the other thing is the importance of legal education and the way we now have common elements of legal education and students studying at different European universities, coming from different European countries and starting to grow socially and legally and that creates a community of people who they are capable of working together to build another European - a legal system

Clive Anderson

And just like a body of European law that's developing, do you think?


Well, there will also be national laws that will be different. There will be experiments, there will be other approaches. But there are common values, there are common ideas. How we work with this in practice often varies. Just as we in the UK are used to seeing the Scots, Welsh and Northern Irish approaching education differently than the English.

mischal hussain

It is fascinating to learn from this discussion how English common law is changing and evolving through cross-pollination with civil law systems.

Final Transcript: 'Common Law' Part 2

To go down

"Common Law" Part 2

The interactive feature is not available in single page view (view it in standard view).


Discussions ended with the conclusion that neither system would kill the other as both had useful features. What actually happened was that the two systems coincided in terms of each other. You may also have been surprised to hear the background discussion of some members of the European Court of Human Rights, as the contributors here clearly had different points of view.

8.2 Summary of Part G

In Part G, you examined the difference between common law and civil law.

9 Part H Consolidation

The purpose of this part is to bring together your knowledge of law in the English legal system. A series of activities will give you the opportunity to review and consolidate your prior knowledge of the English legal system.

Activity 18 Common Law

Temporary Coordination:0 hours 20 minutes

The term "common law" has several meanings. These meanings depend on the context in which the term is used. Look at the different meanings of the term common law that you encountered in this course.


  1. Common law can be used to describe a legal system that developed out of the English legal system in Australia or the United States, for example.

  2. Common law can be used to distinguish a legal system from a civil law system. Civil law evolved from the Roman-Germanic legal system and is the dominant system in much of continental Europe. France has a civil law system.

  3. Common law can be used to denote jurisdiction, i.e. where law has been developed through cases using a system of precedent.

  4. Common law can be used to distinguish it from statutory law, e.g. B. Murder is a common law crime, but the defense of provocation and diminished responsibility is required by law in Sections 2 and 3 of the Murder Act 1957.

  5. Common law can refer to a system common to the entire country.

During your law studies, you are likely to see the term "common law" used to describe a legal system or the law resulting from the application of precedent.

Activity 19 Internal Legal Sources

Temporary Coordination:0 hours 20 minutes

Based on your knowledge of how Parliament or the courts legislate, construct a diagram of the sources of law you have seen in your law school to date.


Judges and the law: view as a single page (13)

You may have chosen to add more detail, for example including legal interpretation rules. The first box here refers to 'domestic' sources, which are the traditional sources of law in England and Wales.

The final activity will help you further solidify your study of this course by considering two controversial cases that have received a lot of media coverage.

Activity 20 courts and decision making

Temporary Coordination:0 hours 30 minutes

This activity requires you to read the two transcripts that examine the cases of Tony Martin and the "metric martyrs".

Exercise 1 Tony Martin

As you read the attached transcript, you may want to make a few notes. In particular, consider the contrast between Tony Martin's and Terry Reagan's results.

click nowon hereto read the transcript of the Tony Martin case (PDF, 0.1 MB, 2 pages).


The Tony Martin case concerned the common law concept of using reasonable force in self-defense. The clips contrasted the outcome of Martin's case, in which he was convicted of murder in his original trial, with that of Terry Reagan, who was dismissed. It illustrates the difficult decisions that judges and jurors in the courtroom, as well as police and prosecutors, must make when making prosecution decisions.

Exercise 2 The Metric Martyrs

Again, you may want to take notes as you read the transcript that examines why the case was dropped and the conclusions of the merchants involved. It illustrates how and why the appeals process is commonly used.

click nowon hereto read the transcript of the Metric Martyrs case (PDF, 0.1 MB, 2 pages).


The case of the Mátric Martyrs provoked a heated debate at the time it was presented. Again, it illustrates the legal process that a particular case may go through. It also illustrates how the media covered European issues such as directives. The case concerned the move to metrics in the UK, a decision taken long before the UK was asked to implement a European directive on metrics.


This free course provides an introduction to the study of law. It guided him through a series of exercises designed to develop his approach to teaching and distance education and helped him build his confidence as an independent learner.


Cowie, F. e Bradney, A. (2000),English legal system in context, Londres, Butterworths, págs. 88–90.

"Expand and develop your thinking skills"Open University Student Toolkit 9.

Slapper, G. (2000) "Castles Built on Law",new legal magazine, June 23.

Slapper, G. e Kelly, D. (2003)the english legal system, London, Cavendish, pp. 75–7 and 84–8.

"Effective use of English",Open University Student Toolkit 1.

"¿Genio o plagio?" (1998)The times, 25.8.

"The Law Factories" (2002)The times, October 29th.


The content mentioned below is copyrighted (seeTerms and conditions) and is included in aCreative Commons Attribution-NonCommercial-ShareAlike 4.0 License

Thanks to the following sources for permission to reproduce material from this course:

Content acknowledged below is copyrighted and used under license.

course image:eric kilbyavailable on Flickr atCreative Commons Attribution-ShareAlike 2.0 License.

A v Essex County Council [2003] EWCA Civ 1848. Crown copyright material is reprinted with permission of the Comptroller of HMSO and The Queen of Scots' Printer.

Readings 1 and 4: Slapper, G. e Kelly, D. (2003) El sistema legal inglés, Cavendish Publishing Limited

reading 3: Slapper, G. (2000) „Castles Built on Law“, New Law Journal, vol. 3, no. 150, no. 6941, June 23, 2000

reading 5: Slapper, G. (1998) „Pure genius or plagiarism?“ The Times, August 25, 1998 © News International Syndication

Figures 2, 4 and 6 of Alamy.

Figure 3 Empics/PA.

Figure 5 © Guinness & Co. The word GUINNESS is a registered trademark.

Figura 7 Direto da LexisNexis Butterworth.


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◀︎Judges and the law

(Video) Hayes: Trump Judges Reminds Us The Rule Of Law Is A 'Human Institution'

Copyright © 2016 The Open University


What is the relationship between judges and the law? ›

Judges interpret and apply the law to specific issues brought before them when two parties disagree and resolve disputes between people, companies, and units of government. Often, the judiciary is called on to uphold limitations on the government.

How judges and justices are chosen answers? ›

Who appoints federal judges? Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution.

Is a written explanation of the views of one or more judges that disagree with a decision reached by the majority of the court? ›

A dissenting opinion is an appellate opinion of one or more judges which disagrees with the reasoning stated in the majority or plurality opinion and, consequently, with the result reached in a case.

How are judges supposed to interpret the law? ›

Instead, the Court's task is to interpret the meaning of a law, to decide whether a law is relevant to a particular set of facts, or to rule on how a law should be applied. Lower courts are obligated to follow the precedent set by the Supreme Court when rendering decisions.

Do judges define the law? ›

In cases with a jury, the judge is responsible for insuring that the law is followed, and the jury determines the facts. In cases without a jury, the judge also is the finder of fact. A judge is an elected or appointed official who conducts court proceedings.

Why is it important for judges to make law? ›

Usually, judges in the superior courts such as the Supreme Courts make laws because it is the highest court and their judgement is binding to the lower courts. This ensures certainly in law but flexibility at the same time.

How are the judges of Supreme Court appointed short answer? ›

According to article 124, every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for this purpose and shall hold ofiice until he attains the ...

How do judges decide cases? ›

The trial judge's decisionmaking must determine what are the facts and the proper application of the law to these facts. To bring order to the confusion of contested facts and theories of law, the trial judge decides cases by hypothesis or a series of tentative hypotheses increasing in certainty.

What are three ways judges are selected? ›

There are six primary types of judicial selection: partisan and nonpartisan elections, the Michigan method, assisted appointment, gubernatorial appointment, and legislative elections.

What is written explanation of the views of one or more judges? ›

In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their decision.

How does a judge express a disagreement of opinion in a ruling? ›

A dissent refers to at least one party's disagreement with the majority opinion. An appellate judge or Supreme Court Justice who writes an opinion opposing the holding is said to write a dissenting opinion.

Are judges supposed to be biased? ›

The duties of judicial office take precedence over all other activities. The judge should perform those duties with respect for others, and should not engage in behavior that is harassing, abusive, prejudiced, or biased.

What are four ways that judges interpret the law? ›

Types of interpretation
  • Textualism.
  • Originalism.
  • Strict constructionism.
  • Functionalism.

Do judges follow the rule of law? ›

These principles have led some people to suggest that judges are somehow 'above the law'. However, it is not right to say that judges are above the law. Judges are subject to the law in the same way as any other citizen.

How judges have interpreted the principles of the rule of law? ›

The judges are not to act upon the laws which are against humanity or based on unreasonable classification or are arbitrary in nature or are against the moral principles; even if such laws are passed by the Parliament.

How do judges affect the law? ›

Judges provide instructions to juries prior to their deliberations and in the case of bench trials, judges must decide the facts of the case and make a ruling. Additionally, judges are also responsible for sentencing convicted criminal defendants. Most cases are heard and settled by a jury.

What is it called when a judge makes a law? ›

Case law (or judicial precedent) is law which is made by the courts and decided by judges. Judicial precedent operates under the principle of stare decisis which literally means “to stand by decisions”.

Are judges a source of law? ›

The judicial branch creates law in the form of decisions, also called "opinions" and "cases," that are published in case reporters. Judges create and shape the "common law."

Do judges have the power to make law? ›

The Parliament and the courts are separate: Parliament makes statute laws, the courts interpret the law. The judiciary (courts) can also "make" law through interpretations and application of common law.

How are Supreme Court Judges appointed quizlet? ›

How is are Supreme Court Justices selected? Nominated by the President and confirmed by the Senate.

How are the Judges of the Supreme Court and the High Court appointed How can they be removed? ›

A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in ...

What is the power of Supreme Court Judge? ›

The most important power of a Supreme Court judge is the power of judicial review. This means that a statute or governmental action can be declared unconstitutional by the Supreme Court. In the 1803 case Marbury v.

Do judges have to explain their decisions? ›

Yes it's true. After a trial, the Texas Rules of Civil Procedure allow either party to request what is called findings of fact and conclusions of law. The judge has to then specify in writing the facts that the judge found to be true and the conclusions of law that the judge made to arrive at the decision.

Do judges choose the sentence? ›

Steps in a Trial

In most states and in the federal courts, only the judge determines the sentence to be imposed. (The main exception is that in most states juries impose sentence in cases where the death penalty is a possibility.)

How will a judge decide a sentence? ›

The judge or magistrates look at the facts of the case and decide the appropriate sentence based on the harm done to the victim and how much responsibility the offender has for the crime.

What is the Three role of judge? ›

judge, public official vested with the authority to hear, determine, and preside over legal matters brought in a court of law. In jury cases, the judge presides over the selection of the panel and instructs it concerning pertinent law. The judge also may rule on motions made before or during a trial.

What are the two ways that judges make law? ›

Judicial Precedent: The application of precedent by judges, whether they are developing the common law (for e.g. in areas such as negligence or murder), or interpreting statutes is the main mechanism whereby judges make law.

What are the two types of judges? ›

The federal judges deal with matters that involve federal law; whereas, State court judges primarily deal with state law matters.

What does the story of judges teach us? ›

Yet, no matter how long or how far we stray from God, the stories found in the book of Judges teach us that God is faithful and rescues us when we cry out to him. The stories found in Judges reveal God's character and demonstrate how God works through his chosen leaders to rescue and deliver his people.

What are the two major themes in the book of Judges? ›

Key Themes

Israel's existence in the land, which had been promised by God, was threatened by its continuing rebellion. Israel had not conquered the land completely (ch. 1), because of its unfaithfulness (2:1–3, 20–22).

What does the book of Judges teach us? ›

As students study the book of Judges, they can learn that the Lord allows His people to suffer the consequences of being unfaithful to Him. Students will also see that the Lord is willing to deliver His people as often as they repent of their sins.

What is it called when a judge gives their opinion? ›

A judicial opinion is a form of legal opinion written by a judge or a judicial panel in the course of resolving a legal dispute, providing the decision reached to resolve the dispute, and usually indicating the facts which led to the dispute and an analysis of the law used to arrive at the decision.

What is it called when you disagree with a court decision? ›

A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion.

How do you argue in front of a judge? ›

You should use oral argument to:
  1. Ensure that the judges understand and focus upon your claims. ...
  2. Correct misimpressions of fact or law that the judges may have about the case. ...
  3. Demonstrate the soundness of your position. ...
  4. Assuage the judges' concerns. ...
  5. Impress the judges positively and memorably.

How do judges abuse their power? ›

Common complaints of ethical misconduct include improper demeanour; failure to properly disqualify when the judge has a conflict of interest; engaging in ex parte communication and failure to execute their judicial duties in a timely fashion. Behaviour outside of the courtroom can also be at issue.

Can judges be wrong? ›

Appellate courts will generally not overturn a factual finding unless it is clearly wrong (“erroneous”) and the record leaves absolutely no question that the judge was wrong. A trial judge has a great deal of power to make decisions in a case, with the exception of decisions that are strictly about applying the law.

Can judges violate constitutional rights? ›

Clothed with the power of the state and authorized to pass judgment on the most basic aspects of everyday life, a judge can deprive citizens of liberty and property in complete disregard of the Constitution.

What are the 4 important components of the rule of law? ›

These are: limited govern- ment powers, fundamental rights, regulatory enforcement and civil justice.

What are 3 factors that influence the way a judge rules in a case? ›

Judicial decisions are also affected by various internal and external factors, including legal, personal, ideological, and political influences.

What are the two types of law seen in the court system? ›

Legislation and common law

There are basically two kinds of laws in Australia: statute law – the laws made by parliaments, usually called 'legislation', which includes Acts, Regulations and Rules. Courts are responsible for interpreting and applying the relevant laws to the cases before them; and.

Does the judges make law if yes how and when? ›

This system of stare decisis is sometimes referred to as “judge-made law,” as the law (the precedent) is created by the judge, not by a legislature. In civil-law countries, all judicial decisions are, in theory, based upon legislative enactments, and the doctrine of judicial precedent does not apply.

Do judges decide questions of law? ›

The judge sees that the proper procedures are followed and they makes decisions about all questions of what the law is in relation to the particular case. Because the jury do not decide these questions, many of the discussions and decisions related to the law are made when the jury is not in the courtroom.

How should judges interpret laws? ›

Key to the rule of law, judges say, is a commitment to applying the law to everyone fairly. Other attributes include applying the law to government, not just individuals and entities; making the law clear and legal proceedings transparent; and balancing individual rights against the safety of others.

Why do judges need to interpret the law? ›

Parliament makes the law but it is the roles of judges to interpret parliament's words. They have a measure of discretion and creative power in the manner in which they interpret legislation.

What is rule of law in short answer? ›

In general, the rule of law implies that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one—including the most highly placed official—is above the law.

Do judges uphold the law? ›

First, part of our job as judges is to interpret laws as written by the legislature or constitutional provisions as approved by our citizens. We take an oath to support those laws – in other words, promise to uphold the laws – regardless of our personal beliefs.

What is it called when a judge does not follow the law? ›

Judicial misconduct occurs when a judge acts in ways that are considered unethical or otherwise violate the judge's obligations of impartial conduct.

What law comes from judges decisions? ›

Case law is the body of law developed from judicial opinions or decisions over time (whereas statutory law comes from legislative bodies and administrative law comes from executive bodies).

Do judges have to know every law? ›

Judges, through the rules of precedent, merely discover and declare the existing law and never make 'new' law. A judge makes a decision, 'not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one'.


1. Darrell Brooks Ignores Judge, Reads Bible Instead
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2. Judge Dragged Out of Courtroom After Being Sentenced to Jail
(Inside Edition)
3. Young Thug Judge Punishes Woman with 30-Page Essay on Jury Duty
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4. Theocratic Judges Who Find Source Of Law In Religion Than Constitution Increased:Dr Mohan Gopal
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