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In deciding a case, a judge must follow any decision that has been made by a higher court in a case with similar facts.
o Judges are bound only by the part of the judgment that forms the legal principle that was the basis of the earlier decision,
known as the ratio decidendi.
o The rest of the judgment is known as obiter dicta and is not binding.
The hierarchy of the courts
The Court of Justice of the European Union is the highest authority on European law, in other matters the Supreme
Court is the highest court in the UK.
o Under the 1966 Practice Direction, the Supreme Court is not bound by its previous decisions.
How do judges really decide cases?
o According to the traditional declaratory theory laid down by
William Blackstone, judges do not make law but merely discover and declare the law that has always been.
o Ronald Dworkin also accepts that the judges have no real discretion in making case law, but he bases this view on his concept that law is a seamless web of principles.
o Very different views have been put forward by other academics.
o Critical theorists argue that judicial decisions are actually influenced by social, political and personal factors and that the doctrine of judicial precedent is merely used to legitimate the judges' decisions.
o Griffith also thinks that judges are influenced by their personal background.
o Waldron accepts that judges make political choices but sees no fundamental problem with this.
When should judges make law?
o There is no doubt that on occasion judges make law.
o There is some debate as to when judges ought to make law.
o When judges make law they can adapt it to social change, but
Francis Bennion has highlighted the danger that if the courts are too willing to make law, they undermine the position of
Advantages of binding precedent, it provides:
o detailed practical rules;
o a free market in legal ideas; and
Disadvantages of binding precedent, its:
o complexity and volume;
o illogical distinctions;
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