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The Common Law

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In England the common law has conventionally bound to the precedent of previous cases as a source of law. Judicial precedent or case law is a document developed in England for uniform application of the law and it means to follow the decision of the previous judge as the source of law. Therefore, judicial precedent is a law made by judges. Judges make a law when they formulate principles or propositions where none existed, which the judges rely upon as a law in subsequent similar cases. Therefore, case law consists of principles of law, formulated by judges when deciding cases before them. The law applies two doctrines. The first one is the doctrine of precedence. This doctrine means that the current judge follows the decision of the previous judge as long as the realities of the two events are related.

The other one is the doctrine of stare decisis, which literally means decision stands or stand by the decision. In this doctrine, the present judge is bound to stand by the decision of the previous judge. However, only the binding part of the precedent is cited as an authority. Not everything in the decision made by the previous judge in the case has the same weight. Furthermore, this principle discerns the civil law from common law.

Hierarchy of the courts

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In deciding disputes, the judges of the inferior courts follow the decision of the higher courts if cases which involve facts and same points of law come before them. For the law of judicial precedent to work properly, there must be a set of law. This law assists the judges to comply with law in order to ensure consistency in the law. One technique of accomplishing this is to have a system of hierarchy, where the judges of inferior courts follow the decision of the superior court. In some cases courts comply with their own earlier decisions.

The general rule is that every higher court binds lower courts. The House of Lords is the most superior court in England and it binds all lower courts of England. Additionally, the court is supposed to follow its earlier decision. However, the court has the power to take off from the preceding decision whenever it is necessary to do so. For example, in Murphy vs. Brentwood District Council (1990), the house decided to depart from its previous decision in Anns vs. London Borough of Merton (1978), on the matter of the local anesthetic authorities in carelessness to future purchases of chattels.

Below the House of the Lords comes the Court of Appeal. The court complies with the decisions of the House of the Lords. The court also adopts its previous decisions. Decisions of the Court of Appeal bind all inferior courts. The law of the High Court is tied by the conclusions of the courts above it and it binds all the courts below it. Under the High Court, there is the Crown court, County Court and Magistrates’ court, and they adopt the decision of the superior courts. They do not create any binding precedents and their judgments are not reported in the volume of Law Reports.

Written records of cases and the approach of judges

It is not the entire judgment which is a binding precedent. It is only that part which constitutes the ratio decidendi, and the rest of the judgment is not binding. Ratio decidendi literally refers to reasons for the decision. Sometimes a judge may have said things which are not stricty relevant to the final judgment.  Such remarks are known as obiter dicta and do not create any binding precedent. An obiter dictum refers to remarks made by passing. However, these remarks are not destitute of legal consequences: they create a persuasive authority when there is no binding precedent available.

There are different approaches of judicial precedent applied by the judges when making decisions. They include declaratory precedent, original precedent, distinguishing precedent, binding precedent, persuasive precedent and over-ruling precedent. Declaratory precedent is a situation where a judge applies an already existing principle to the case before him for his judgment. If no applicable legal principles exist, the judge creates a new rule of law to govern the facts before him. The new rule created may act as a future precedent for the judges of the inferior court.

Original precedent is the principles of law formulated by the court. It is the law creating precedent. Judges decide the case before them on the general principles of law. The court establishes the original precedent to be followed in the future similar case; for instance, the case of Donaghue vs. Stephenson (1932), a snail was in a bottle container. As there were no past case for the judge to base his judgment, he was likely to look through those cases that use the same principles for him to arrive at a conclusion.

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Distinguishing precedent is a situation where application of the previous precedents may lead to injustice if applied in the current case. If the court has gratified that an earlier case was decided by its own facts and following the precedent will lead to unfair decision in criminal cases, then the only way out is to distinguish the two cases. It is a precedent in its own rights; for example, cases of Balfour vs. Balfour (1919) and Merritt vs. Merritt. In both cases, a wife had sued her husband for the breach of contract. In Balfour the case did not succeed. It was held that the husband was not liable because there was no necessary implication to create any binding relation. It was more like domestic arrangement between husband a wife rather than a contract. In Merritt the case was distinguished from that of Balfour. There was a legal relation between husband and wife. The case was affirmed by the concept that the contract was in writing form. Therefore, husband was held liable for breach of a contract.

Binding precedent is an earlier decision which binds the court before which it is relied upon. For example, a precedent of the Court of Appeal used in the High Court. The High Court judge must follow the decision made by the Court of Appeal’s judge. Thus, current judge must follow the decision of the senior court even if he does not agree with the logical reasoning.

Persuasive precedent is an earlier decision made by judges. The decision made is used in the next case to persuade the court to resolve the case in the same way. For example, High Court decision used in a Court of Appeal, or a decision handed down by a court in another country. Persuasive precedent is also applicable for obiter dicta affirmation by a court superior in the chain of command than the present court. For instance, in case of R. vs. Gotts (1992) where the Court of Appeal complied an obiter dicta declaration by the House of Lords during the case of R. vs. Howe (1987) about the accessibility of the defense of duress when accused for undertook murrder.

Finally, over-ruling precedent arises where the previous judgment was made per incuriam (ignorance of an existing precedent). In this case the fundamental facts of law have been omitted in a previous case and a current judge intends to include them in the current case. Therefore, in this case the current judge makes a fresh precedent over-ruling the previous one.  The judge develops the precedent to be followed in the future similar case.

Importance of Case Law

Advantages of case law include certainty and predictability, possibility of growth, uniformity and consistency, rich in detail, practical in nature, convenience, flexibility and the saved time.

Judicial precedent is certain and predictable. A person would be able to anticipate the judgment of a case regarding the decision that was made in the previous case. The maxims of stare decisis have contributed certainty and consistency in the development of rules of law. The strict requirement of the following the precedent of the superior court also relieves the judges of the inferior court from accepting responsibilities for their decisions.

Case law enhances the growth of a society. Judicial precedent usually applies where there is no legislative provision. In such cases they apply as if they were the law themselves i.e. case law grows out of the practical problems and thus it keeps pace with the changing needs of the society.

Rich in detail: each principle of the law or equity is supported by elaborate judgments of distinguished judges and advocates. These judgments are of tremendous value to judges, lawyers and students of law to understand, appreciate and apply to the practical problems facing them.  Uniformity and consistency: case law enhances the uniformity in the running of fair dealing. This is because cases are decided in the same way. Similar cases should be given similar treatment, hence, ensuring the uniformity of law. Consequently, case law ensures equitable application of justice in the nation.

They are practical: principles or preposition of law are formulated by superior courts on the basis of prevailing circumstances. Hence, the law manifests such circumstances. Convenience: Case law is convenient in application in that judges in subsequent cases are not obliged to formulate the law but to apply the established principles.

Case law is flexible by nature: it is contended that when judges in subsequent cases attempt to distinguish the earlier decision as to justify departing from them. This in itself renders the legal system flexible.

Lastly, case law saves time: instead of judges and the advocates waste time arguing and researching on a concluded matter, they can easily apply the principles set by the previous judges. This allows the judges to create time to carry out other duties assigned to them. The current judge is supposed to follow the previous judgment as long as the facts of the cases are similar.


Much of case law is contained in voluminous law report dating back to Middle Ages. These reports have to be constantly referred to by those who are connected with the administration of justice. For this reason an enormous volume of case law has been now embodied in statutes, e.g. Sale of Goods Act, Hire –Purchase Act and the Trustee Act.

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