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Published: Fri, 02 Feb 2018
Common law reasoning
Fundamental principles of the English legal system include:
The rule of law
The separation of powers
The doctrine of Parliamentary sovereignty
The Rule Of Law
According to AV Dicey (1885), one of the key features of English law (as opposed to continental legal systems) is the Rule of Law, which Dicey said meant:
- An absence of arbitrary power by the State
- Equality before the law
- Supremacy of the law – the law of the land was found in the decisions of courts rather than in a written constitution.
The Separation Of Powers
This idea can be traced back to ancient Greek philosophy, but was also advocated by the English philosopher Locke and the French philosopher Montesquieu.
Separation of powers is based on three distinct functions or government.
The Doctrine Of Parliamentary Sovereignty
- This doctrine states that Parliament is supreme. The consequences of this:
- It can make any law that it likes on any topic that it like; it can repeal any laws made by previous Parliaments.
- Courts cannot declare that Acts of Parliament are invalid;
- Parliament cannot bind its successors.
- This principle is linked to the separation of powers.
- The judiciary is separate and distinct from the executive. The executive may play no part in the decision making by the courts
Types Of Judicial Reasoning
- Reasoning from the general to the particular
- For example
- Major premise: All men are mortal
- Minor premise: Socrates is a man
- Conclusion: Therefore, Socrates is mortal
Involves arguing from the particular to the general
- Jack is lying dead with a bullet in his head.
- Carol is standing over him with a gun in her hand.
- Therefore, it can be concluded that Carol killed Jack.
Reasoning By Analogy
Reasoning by drawing on past experience
- Wood floats on water
- Plastic is like wood
- Therefore, plastic floats on water.
- Note: it can be seen that the truth of the conclusion depends entirely on the accuracy of the analogy.
- Case law refers to the creation of law by judges in the process of making judicial decisions.
- It is to be distinguished from law made by Parliament – statutes/Acts.
- Although statutes are the supreme source of law, case law is extremely important in the development of the law.
The doctrine of judicial precedent, or stare decisis, “lies at the heart of English law” according to Gary Slapper.
- It refers to the way in which judges make decisions within the hierarchy of courts: the decisions of higher courts, and the same court, are binding on lower courts.
- It has been described as “a trick that has been tried before, successfully.”
- In order for precedent to operate as a doctrine, there are three necessary pre-conditions:
- There must be accurate and reliable law reports
- There must be a method of finding the part of the superior court’s decision that is binding
- There must be a strict hierarchy of courts
The operation of precedent depends on accurate and reliable law reports.
Law reporting began in 1275 – the Year Books – written in Legal French.
Private reports 1535-1865 – produced by private individuals – of varying degrees of accuracy
Modern reports 1865-present – accurate, produced by the Council for Law Reporting
The most common sets of law reports are:
- Appeal Cases (AC)
- Chancery Division (Ch)
- Family Division (Fam)
- King’s/Queen’s Bench (KB/QB)
- Weekly Law Reports (WLR)
- All England Law Reports (All ER)
- Examples of case citation:
- Re S (2002) 2 WLR 720
- Fisher v Bell (1961) 1 QB 394
Establishing The Principle In A Case
Precedent is more accurately described as an art than a science.
The part of the decision that binds future judges is known as ratio decidendi = the reason for the decision.
The other statements made by judges that do not bind future courts are known as obiter dicta = statements said by way of example
A silly example:
A judge has to decide if a type of fruit, called a ‘tangelo’ is an orange or an apple (perhaps for import tax purposes)
In his judgment the judge says:
“A tangelo is an orange, just like a peanut is a nut.”
In his judgment the judge says: “A tangelo is an orange, just like a peanut is a nut.”
A tangelo is an orange, ratio just like a peanut is a nut.” obiter
This means that in any future case decided by a lower court, if the issue is whether a tangelo is an orange or an apple, the lower court is bound to say that it is an orange.
Is this true even if the higher court was wrong?
The House Of Lords
The House of Lords (HL) sits at the apex of the court hierarchy and its decisions bind all courts beneath it.
In London Tramways Co Ltd v London County Council (1898), the HL declared that it was bound by its own previous decisions. Lord Halsbury recognized that this may cause hardship in individual cases.
Rationale: certainty and finality in the law
In fact, the rule did not appear to create certainty.
In July 1966, Lord Gardiner, made a statement on behalf of the House:
“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases
They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. “
The Practice Statement 1966 allows the House to adapt English law to changes in social conditions.
This is consistent with the practice of the highest courts in other Commonwealth countries, the US Supreme Court, the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR).
Their Lordships have used the power to overrule their own previous decisions sparingly. It will not depart from a previous decision merely because it was wrong. A material change of circumstances will have to be shown.
The Practice Statement 1966 will now be considered in three contexts:
- Civil cases
- Criminal cases
- Cases in which the House declined to overrule a previous decision.
- Civil Cases
In R v United Railways of the Havana and Regla Warehouses Ltd (1961), the HL decided that damages in an English civil case could only be awarded in £.
This issue required reconsideration due to changes in in foreign exchange conditions.
In Miliangos v George Frank (Textiles) Ltd (1976) HL overruled the Havana case.
Addy v Dumbreck (1929) was overruled in
Herrington v British Railways Board (1972)
Rondel v Worsley (1969) was overruled by
Hall v Simons (2000)
Can A Husband Rape His Wife?
Sir Matthew Hale’s (1664) “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband which she cannot retract.”
a) Criminal Cases
DPP v Northern Ireland v Lynch (1975) – HL decided duress was available as a defense to murder.
This was overruled in R v Howe (1987)
In R v R (1991) The HL recognized that this was no longer an acceptable state of affairs given the equal status of women in society.
As Lord Lane pointed out:
“It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter it ….”
Cases in which the House declined to overrule a previous decision
C v DPP (1995) this case involved the principle of doli incapax
HL refused to abolish doli incapax on the basis that this was the proper responsibility of Parliament and not the courts.
Is the House bound by any other courts?
The diagram of the hierarchy of courts indicates that the House is the pinnacle and therefore should not be bound by other courts.
- However, the decisions of two courts are important:
- The ECJ
- The ECHR
The issue of when the HL should overrule its own previous decisions creates a dilemma. The House is the final appeal court and must create both certainty and flexibility – two concepts which often conflict.
The concepts of retrospective and prospective overruling are important to this issue.
Retrospective Or Prospective Overruling?
Retrospective effect means that once the law has been changed it applies not only to the case in hand but to all subsequent cases coming before the courts, even though the events in questions happened before the prior decision was overruled.
An example of retrospective effect?
Imagine that one week ago you concluded a complicated contract based on a precedent case from 1993.
This morning, you read in The Times that the House overruled that 1993 decision and substituted a new rule of law.
What does that mean for your contract?
The Court Of Appeal
The Court of Appeal (CA) is bound by decisions of the HL.
CA judges have debated that this is the case.
Lord Denning stated that if the HL made its decision per incuriam, the CA was not bound to follow it.
In Broome v Cassell (1971) Lord Denning MR (1971) convinced the other CA judges to reach a decision contrary to the HL precedent Rookes v Barnard (1964), stating that Rookes was decided per incuriam.
Broome was appealed to the HL and Lord Denning was firmly rebuked for failing to adhere to stare decisis.
The CA and decisions of the Judicial Committee of the Privy Council (JCPC)
The JCPC cannot create binding precedent for English courts. However, the same Lords sit in both the JCPC and the HL.
In AG for Jersey v Holley (2005) there was an appeal from the CA of Jersey to the Privy Council concerning the law of provocation as a partial defense to murder.
Previously in R v Smith (Morgan James) (2000) the HL had considered the same issue.
In Holley, a 9 member panel reached a decision that disapproved of R v Smith.
What Decision Should English Courts Follow?
In R v James; R v Karimi (2006) the CA followed the Holley decision.
Some academics say that the CA, in effect, ‘overruled’ the HL.
However, this is not entirely accurate since the Privy Council sat as an expanded court, comprised of HL Lords; its decision was clearly meant to represent the latest statement of the law.
Is the CA bound by its own previous decisions?
As for the Civil Division, the basic rule is that it is so bound.
Three exceptions were recognized to this rule by Lord Greene MR in Young v Bristol Aeroplane Co Ltd (1944):
If there are two previous conflicting CA decisions, the present CA can decide which one to follow
If its own previous decision has been overruled expressly or impliedly by the HL, it need not be followed
Example: if the orders of cases are:
Court of Appeal decision in 1979
HL decision in 1999 (disapproving of the 1979 CA decision)
The Current CA Case
Which case must the current CA follow? The 1979 CA decision or the 1999 HL decision?
The CA is not bound by its own decisions that were made per incuriam
In Morelle v Wakeling (1955), Lord Evershed MR limited the use of the per incuriam rule to cases where:
There was ignorance of authority which would have been binding on the court and
This ignorance led to faulty reasoning.
Is the CA bound by its own previous decisions?
The doctrine of precedent does not apply strongly in the Criminal Division as it is recognised that a person’s liberty may be at stake: R v Simpson (2003)
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