Sources and Methods of English Common Law

John Belljsb48@cam.ac.uk

Stare decisis and precedent

Stare decisis et quieta non movere

Stare decisis = Being obliged to follow a decision you think is wrong

Precedent = Treating previous cases as AUTHORITY reasons for a decision in the present case (strong)OR treating previous cases as INFLUENTIAL reasons for the present case (weak)

Use of cases in judgments

• Empirical regularity (practice, not a reason)• Good practice to consider (prudential reason)– Precedent (broad sense)

• Something one must consider (obligatory reason)– Precedent (narrow sense)

• Something one must follow whatever its merits (exclusionary reason)– Stare decisis

English and Welsh courts

Court of Appeal

High Court

County Court

Crown Court

Magistrates Court

What does the Supreme Court do?

• Final Court for all part of the UK on civil and criminal law– Now includes Scots criminal

law

• Final Court on Devolution matters– Abstract and concrete review– Appeals and references

• Final Court on Human RightsSupreme Court, London

Behrens v Bertram Mills Circus [1957] 2 QB 1

Style of Judgment “It may be unreasonable to hold the owner of a biting dog responsible thereafter for everything it does; but it may also be unreasonable to limit the liability for a tiger. If a person wakes up in the middle of the night and finds an escaping tiger on top of his bed and suffers a heart attack, it would be nothing to the point that the intentions of the tiger were quite amiable.” Devlin J [1957] 2 QB at 17.

The ruling

• Ratio decidendi: the rule necessary for resolving the issue under discussion

• Obiter dictum: other observations– Responding to arguments of counsel– Identifying issues to be resolved in the future

• The limits of rulings– Positive rules– Negative rules

Distinguishing

• Following = applying the rule exactly to facts• Strong distinguishing = changing the rule by

adding a qualification– A+B, but not C = result different from A+B

• Weak distinguishing = Explaining why the facts in the instant case do not fit within the ruling A+B

Distinguishing: Mr Van Oss’s argument

An elephant is ferae naturae

unless it is a Burmese elephant

Reading Statutes

Local Government (Religious etc Observances) Act 2015

No Welsh druid prayers!

• Very detailed provisions presuppose a literal reading of the text by the courts

• Very precise definitions provided: Act aims to be self-contained

• Rules on “local government”• Extension to 25 categories of

other local administration• But then qualify the application

of the definition

Offa’s Dyke

Methods of Interpretation

• Status– Rules of practice and legal justification– Reference point is the practice of judges

• Tradition of ‘literal’ interpretation– Reading the text as self-contained– Expecting the legislature to correct mistakes

• More recently ‘purposive’ approach

Purposive v Teleological

• Context different– More complex legislative process (no clear

legislator)– Multiple languages– Court defines ‘telos’ then seeks achieve it

• Purposive– Makes use of more defined & public permitted

sources– Resist ‘strained’ interpretation

Cross

1. The judge must give effect to the grammatical and ordinary or, where appropriate, the technical meaning of words in the general context of the statute; he must also determine the extent of general words with reference to that context.

2. If the judge considers that the application of the words in their grammatical and ordinary sense would produce a result which is contrary to the purpose of the statute, he may apply them in any secondary meaning they are capable of bearing.

Permitted sources

• To clarify apparent ambiguity (not to create it)• Legislative documents– Within text– Hansard

• Policy documents– White papers– Law Commission Reports– Treaties