The hierarchy of the courts is as follows.
- The European Court of Justice (ECJ), is bound unto itself and can overrule all other English courts
- The House of Lords, is the highest British court, all other British courts must follow it’s decisions
- Privy Council
- High Court, only County Court follows it’s decisions
- Crown Court, only Magistrates Court follows it’s decisions
- Magistrates Court, decisions are not followed by any court.
The judgements in case law are are always split between two elements, the ‘Obiter Dicta’ and the ‘Ratio Decidendi’ The ratio decidendi is, in English, the reason for deciding. It is part of binding precedent within case law. Obiter Dicta encompasses all parts of judgement not taken in with the ration decidendi.
Judicial Precedent is well reputed as a good system, for many reasons are:
- Certainty – Judges will not make their own random decisions, and litigants can plan their affairs, as they know that cases will be treated alike.
- Detailed practical rules – Many statutes are often based on theory and logic, whereas judicial precedent is always based on real situations.
- Free Market in Legal Ideas – A good example of this is the statement of the right wing philosopher Hayek, who believes that legislation should be almost non-existent, and that case law should become predominant. Therefore, Hayeks ideas see that law can develop in response to demand.
- Flexibility – The law has to be flexible, and able to change quickly just as society does. With the system of judicial precedent, changes can be made in the law far quicker than if parliament were to make those changes.
Of course, the system of judicial precedent is not without it’s faults. Many faults are obvious within case law. The major ones are as follows.
- Complexity – The sheer amount of previously decided cases is phenomenal, it is very difficult to pinpoint appropriate principles.
- Rigidity – In some situations, judges may have to follow binding precedent that may be inappropriate.
- Illogical Distinctions – Binding precedents must be followed unless the facts of the case in question are different. This will normally lead to judges making small decisions between a previous case and the case before them. This in turn leads to further complications in the law.
- Unpredictability – If too many illogical distinctions are made, it can be impossible to work out which precedents are applied to a new case.
Many believe that judges are too creative within case law, and others believe the contrary. Judges are allowed to adapt the law through judicial precedent, if there is little precedent to go on in a case.
The term create actually means ‘to cause to come into being’. In this sense, judges cause to come in to being, or create law where precedent is unavailable, they have to act on their best judgement to come up with an appropriate solution to the problem.
The 1966 practice direction plays a major role in this aspect of law. The 1966 practice direction was a statement by the judicial section of the House of Lords. They said that they would modify their present practice, and that they would no longer be bound by it’s own decisions. In my opinion, the entire English legal system should be able to use the 1966 practice direction, to make the system more simple.
Another factor that plays a major role in this aspect of law is William Blackstone’s declaratory theory. This theory states that judges do not make law, but merely, by the rules of precedent, discover and declare the law that has always been.
Blackstone’s declaratory theory. This theory is probably true, and I agree with it. Blackstone was a clever man, and this theory still makes sense today.
Judges can be creative through case law as theyhave to act upon their best judgement to create new law.
