What is law?
The system of rules which a particular country or community recognises as regulating the actions of its members and which it may enforce by the imposition of penalties
What role does the law play?
There are many functions that the law plays:
it maintains the peace and safety in society;
it regulates the relationships between individuals and other legal entities;
it protects human rights and liberties;
and it ensures the smooth running of economic and political activities.
Legal evolution
- As a body of rules designed to promote the orderly conduct of society, the law must reflect the wishes of tolerance of the broad majority of the population.
In order to be credible and thus enforceable, it must develop in line with societal changes in order to remain relevant in those living under the rule of law - Although development looks to the future, the historical development of the English legal system is not a subject that is relevant only to historians. The law that we have today is a by-product of a long history of legal development
States of legal development
- The development of the law of England and Wales can be very broadly divided into the following periods:
- Pre – 1966 (Norman Conquest) – locally based systems and customs of Anglo-Saxon society
- 1066 – 1485 – the formation of common law and its imposition over and above local systems and customs
- 1485 – 1870s – development of equity; two separate legal systems co-exist
- 1870s – present – joint jurisdiction for common law and equity; massive development in statute law; massive development in statute law; growth of governmental and administrative bodies; influence of European union law (post-1973)
Monarch as a source of justice
Today’s legal system has its origins in the Kings’ And Queens’ Courts. Following the Norman Conquest, it gradually became possible to dispense a more centralised form of justice, with the King as the central figure.
- In the Norman period, the Curia Regis – the King’s Court – played the role of an itinerant court, allowing the monarch to exercise his personal power – high justice – in the most important of cases.
This prototype central court existed alongside the local courts in shires and hundreds, that had been a feature of the Anglo-Saxon period
The king was aided in the administration of justice by a group of semi-professional, skilled clerics who were part of the royal entourage.
These clerics eventually took on the function of deciding disputes themselves. They became autonomous from the king and established themselves at Westminster.
The established of a fixed King’s Court was required by the Magna Carta in 1225. The king’s council gradually developed and different branches of the court evolved to deal with different types of disputes
The three courts and assize courts
The courts developed from the King’s Council.
The first was the Court of Exchequer, dealing with royal finances,
followed by the Court of Common Pleas, dealing with the ownership and possession of land.
Later the Court of King’s Bench emerged, dealing with serious criminal matters. These courts remained until the Judicature Act 1873
To make provision for the administration of law outside London, royal justices were dispatched to the provinces with a royal commission to hold assizes or sittings of the royal courts.
Initially the assize courts had jurisdiction over criminal matters, but this was later extended to civil matters.
Assize courts continued until the enactment of the Courts Act 1971
An appeal court, also emerged in the form of the Court of Exchequer Chamber, it was abolished in 1875 when its jurisdiction was transferred to the new Court of Appeal
Common law
Over time, the King’s court became essential to the resolution of disputes between citizens.
The law which the king’s judges applied was based upon the common customs of the country, hence th name common law
This process was most notable following the calling of the first assizes by King Henry II (1154-89), to deal with the legacy of a lengthy civil war involving his predecessor, King Stephen.
This re-establishement of royal power provided the opportunity to apply the law of the King’s courts countrywide
The effectiveness of the new system depended upon the growth of the King’s Courts and their eventual ascendancy over the local courts.
This process did not come about easily. The expansion of the king’s courts was resisted by the local barons, who saw it as a threat to their power, which was often exercised through the local courts.
Neverhtless, the growth of the new system continued. It was firmly in place and reconished as supreme over the local courts by the time of the reign of Edward (1272-1397)
Common law meanings
- It is important to be aware of the different meanings of the term common law and to identify which meaning the term bears in the particular context in which it is used. The term common law may be used:
In the historical sense, to distinguish the law as applied by the Kings’ judges as opposed to the law as applied by local customary courts
To distinguish the law as applied by the king’s courts as opposed to the rules of Equity, a system developed by the separate court of Chancery
To distinguish case law – that is, law developed by judges through the system of precedent – from statute law
To identify the law as applied by common law countries (such as Commonwealth jurisdictions to which the English legal system was exported) as opposed to the law applied by civil law countries where the law is based on Roman law as, for instance, in most of mainland Europe
The writ system
The common law which was developed by the king’s courts was a procedural system.
There was no automatic right of access to the king’s courts.
To be able to pursue the claim, the claimant had to purchase a writ from the Chancellor before an action could be brought before the courts
A writ was a document with a royal seal that constituted a royal ddemand for the defendant to appear before the court. It contained the foundation of the complaint, with a different form of writ being used for each ground of complaint or forms of action
The writ system soon became rigid. The forms of these writs became fixed, and only Parliament could allow a new type of writ to be issues. If a claimant could not find an existing writ to cover his case, he had no claim which the court would try
The rules of procedure, which required a pre-existing form of action for a case to be heard, therefore had a stultifying effect on the growth of the substantive law
Different forms of writing
Writ of right - first form of real action - remedy - recovery of land
Debt - recovery of fixed sum - remedy - damages ie money
Detinue - return of chattel - damages
Covenant - breach of promise - damages
Account - accounting for payment - damages
Trespass- against persons, goods or land Case- jury trial - damages
Case - remedy where no current action - damages
Procedure over substance?
The writ system exemplifies how the common law became hidebound by complex and restrictive procedures. For each writ there was a corresponding fixed procedure, which laid down the steps that had to be followed.
Selection fo the wrong writ or failure to follow the correct procedure would be fatal to an action. Process, rather than principles, rights and duties, was paramount.
The reason for this was that the common law developed largely as a means by which a dispute could be resolved.
The courts came into existence as part of the development of centralised royal power, with the aim to conclude disputes rather than necessarily to resolve them in a just way. It was not a system that developed from a conceot of rights and wrongs
Another problem with the emerging common law was that, in personal actions, it offered only the remedy of damages. For example, when one breached a covenant – a legally binding promise – the aggrieved party would not be able to compel the breaching party to fulfil the promise
Such issues combined together to encourage the emergence of the law of equity
Summary
The current legal system of England and Wales is the result of many centuries of evolution and development
The common law emerged as part of the centralising influence of the monarchy in the medieval period
The common law gradually supplanted locally based and administer customary law
Legal remedies now available, such as damages, have evolved from earlier forms of relief
The rigidity of common law processes caused problems which contributed to the emergence of the law of equity
Case law
The ‘common law’ refers to the body of case law decided by judges. It is sometimes referred to as ‘judge made’ law.
The common law system is governed by rules of precedent. This means that the decisions of judges higher up in the hierarchy of courts and tribunals are ‘binding’ on those lower down. In other words, judges in lower- level courts and tribunals have to decide cases in accordance with the principles laid down by the higher courts.
What do judges do?
Judges decide cases that are brought by individuals (whether these are private individuals, or other ‘legal personalities’ such as companies) against another party. Judges in the UK do not, of their own accord, start cases or investigate legal issues.
In order to decide a case, a judge will:
• Consider the evidence brought by the parties and decide which evidence they find credible.
• Consider the applicable law. This may be case law, or statute, or a combination of both. Although Parliament makes legislation, judges decide how it should be applied in any given case. They then give a judgment. *
Apply the law to the facts of the case and reach a decision on which party should succeed.
• Decide what remedy the successful party is entitled to, e.g. damages, and make an order giving the successful party its remedy.
[* NB the spelling of this term, meaning the final outcome of a court hearing, is judgment, without a central ‘e’. (In contrast to the personal quality of an individual in having, for example, ‘good judgement’).]
Do judges make law?
A keen area of academic debate is whether or not judges make law, in the sense of creating legal principles. The traditional theory is that they do not do so but merely declare what the law has always been.
Linked to this idea is the retrospective nature of precedent. The view is that judicial decisions are based on statements of legal principle which have always been in existence, but which are not fully expressed or delivered until an appropriate case is brought before a court.
Contrast the retrospective and reactive nature of case law with the prospective nature of statute law. Statutes (Acts of Parliament) set out the law for the future and rarely have retrospective effect.
As a result, judges are normally cautious about ‘upsetting’ long-standing precedents, particularly in the fields of criminal law and property rights. Such precedents would likely have been relied on by many people, and to hold that the law is not as it was could have serious personal or financial consequences.
Stare decisis
A distinct characteristic of the English legal system, as a common law system, is that it employs the doctrine of stare decisis or binding precedent. Stare decisis literally means ‘stand by what has been decided’.
In essence, once a principle of law has been laid down, future cases with the same material facts must be decided in the same way. This is in contrast to civil legal systems, where courts concentrate on interpreting detailed written codes of the law rather than interpreting previous decisions applying those codes.
Previous decisions, or precedents in civil systems are simply examples of the application of codes.
For an English court to be compelled to follow what has been stated in an earlier case, it is necessary for it to be persuaded that:
• The earlier case was decided in a court which binds it, and
• The relevant part of the earlier case is binding, rather than merely ‘persuasive’.
What part of a judgement is binding?
As soon as a ‘point of law’ has been decided by any superior court, it establishes a precedent. A point of law is a question about the application of the law to the case, which the court has been asked by the parties to decide.
Some judgments, such as those of the Supreme Court, deal with points of law of ‘general public importance’.
The lower courts also deal with points of law, but they are usually of little wider significance.
A precedent may be:
Binding, in which caseit must be followed; or
Persuasive, in which case it will be considered by the later court and may be followed.
Not every aspect of a judgment is binding. A judgment consists of:
(a) A summary of the facts.
(b) Statements of law, which will include the ratio decidendi and (often) obiter dicta.
The court’s decision on remedy, which is binding only on the parties to the case.
Ratio decidendi
‘Ratio decidendi’ means “reason for the decision”. The ‘ratio’ of a judgment is the part which is binding on other courts.
The ratio is the legal principle or rule on which the court’s decision is based, applied to the material facts of the case.
The material facts are those on which the decision of the court depends. If the material facts change, the court’s decision might also change.
Identifying the ratio
The ratio may not be immediately obvious when you read the judgment of a case. This may be because the judges have given several reasons for their decision, because their reasons may not be entirely clear, or because each judge may have given a different reason, though they have agreed on the final outcome.
It is important to point out that determining a ratio is an art rather than a science.
A further problem is identifying the width or level of generality that a ratio is meant to have.
A ratio can be viewed as a narrow proposition of law or a wide proposition of law.
If it is the former, a ratio would (for example) apply only to very specific facts; on the latter view, it could be treated as establishing an entirely new, wider principle.
The judges in the case may state what the width of the ratio should be. Judges in subsequent cases will also consider how wide the ratio of a previous case is.
They might decide that the ratio is very narrow, so that the earlier case can be distinguished. This is known as ‘confining the (earlier) case to its facts’.
In practice, a useful guide to identifying the ratio of a judgment is to consult a law report.
These introduce the text of a judgment with a ‘headnote’, which gives essential information about the case including a section in which the law reporter explains what in his or her view the court has held as a matter of law, in reaching its judgment.
Obiter dictum
Where a judge comments on an area of law, on which it is not necessary to reach a decision in the case, this is known as an obiter dictum (obiter dicta in plural form).
Obiter comments are not regarded as binding, although they may be highly persuasive and influential in subsequent cases.
They consist of:
- Statements of law not necessary to the decision, e.g. on hypothetical facts or on facts which are not material.
- Statements of the law as the judge would like it to be, but for the doctrine of precedent.
- Dissenting judgments, i.e. the view of a judge who disagrees with the majority of the court.
In practice, obiter comments may be very important. As Ungoed-Thomas J noted in Re Grosvenor Hotel, London (No. 2) [1964] 2 All ER 674: ‘A battery of howitzers off the target is more impressive than a pop-gun on it. Powerful obiter dicta by the House of Lords may sometimes be regarded as so persuasive as to be practically binding.’
Terminology
Where a court considers the facts of a case to be so similar to those facts in an earlier case that the law in the earlier case should be followed, it can be said to be following the decision in that case.
If the court doing the ‘following’ is a higher court, then the later decision is also said to be approving the earlier one.
Where a court in a later case considers the facts of an earlier case to have similarities to those in the case before it and therefore applies the law in that earlier case, the later court is said to be applying the earlier decision.
A court may avoid following an otherwise binding precedent if it feels able to ‘distinguish’ the earlier case – e.g., by finding a difference in the material facts between the two cases.
A principle which applies on one set of facts may not apply on a slightly different set of facts. Finding a fact on which to distinguish an unhelpful or unpopular precedent is part of a judge’s skillset.
Reversing, overruling, overturning
A judgment is reversed if a case goes to appeal, and the higher appeal court disagrees with the lower court. This does not negate a precedent; it simply means the higher court has not applied the law in the same way.
A precedent is overruled if a superior court in a later case decides the original precedent set in a past case is wrong and sets a new ‘correct’ precedent instead.
The original precedent is no longer good law. For example, the Supreme Court may overrule a precedent from the Court of Appeal.
The word ‘overturn’ is also used for this.
Note that, if a judgment is reversed, or if a precedent is overruled, but only in part, some of the elements of the former decision may be left intact.)
One of the potential problems inherent in a system based on precedent is ossification of the law.
What happens at the top of the hierarchy if today’s highest appeal court (the Supreme Court) wishes to depart from its own precedent in order to modernise or correct the law?
Departing from own precedent
Until 1966 this was not formally recognised as being possible. However, in that year, the former Appellate Committee of the House of Lords – the “law lords” – recognised that this may be necessary in some situations with the Practice Statement (Judicial Precedent) 1 WLR 1234.
In this Lord Gardiner L.C. stated that the law lords “recognise[d] that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.”
In modifying the old practice, he warned that they would “bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.”
In Austin v Southwark LBC [2010] UKSC 28, Lord Hope confirmed that the (new) Supreme Court would maintain the same guarded but potentially flexible approach. This is reflected in Practice Direction 4 of the Supreme Court.
Court of Appeal - departure from precedent
