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Chapter 3 Legal reasoning

1 Doctrine of judicial precedent

1.1 Common law and equity are a body of judge?made laws contained in decisions of the courts called judgements.

1.2 Judge – made law or case law is whereby judges follow the decisions of other judges. The doctrine of precedent is sometimes referred to as 'stare decisis': let the decision stand.

1.3 For case law to be workable as a source of law it needs to achieve consistency. Various 'rules' have therefore developed to achieve this aim.

1.4 ‘Rules’:

1.4.1 Only statements of law made by judges can form precedent. In turn these statements must be divided up into ratio decidendi (the reason for the decision) and obiter dicta (other comments).

Only the ratio decidendi forms the basis of precedent as it is this reasoning which is vital to his decision. Obiter dicta are statements of general law (or hypothetical situations) which are not necessary for the decision in the case and hence are not binding.

1.4.2 As the ratio decidendi of a case stems from specific facts if a precedent is to be followed in a subsequent case the facts of that case must be sufficiently similar.

1.4.3 The precedent must have been set by a court capable of creating precedent and not have been overruled.

1.5 Hierarchy of the courts:

(a) House of Lords – binds all lower courts but not itself (exceptional cases)

(b) Court of Appeal – binds all lower courts and itself

(c) High Court

Judge sitting alone – binds all lower courts not divisional courts

Judges sitting together – binds all lower courts and divisional courts

(d) Crown

Magistrates – bind no-one at all

County

1.6 A precedent ceases to be binding if:

(i) It has been overruled by statute or EU law or by a higher court.

(ii) It can be distinguished on the facts i.e. if the material facts are not the same.

1.7 Advantages:

(i) Detail.

(ii) Flexibility.

(iii) Consistency.

(iv) Fairness.

1.8 Disadvantages:

(i) Bulk.

(ii) Restricts judicial discretion.

(iii) reactive system.

(iv) Lack of democratic accountability.

1.9 Persuasive authority:

These are decisions (e.g. those of commonwealth countries, inferior courts and obiter dicta) which are not binding but may influence the decisions of judges in future cases.

2 Interpretation of statutes

2.1 Interpretation:

Statutory aids:

(a) Interpretation Acts

(b) Interpretation sections of individual statutes

(c) Preambles

Extrinsic aids:

(a) Dictionary

(b) Hansard – Pepper v Hart

(c) Reports of committees

2.2 Presumptions:

(a) Act applies to the whole of the UK but not elsewhere

(b) Act won’t be contrary to existing EU or international law

(c) Act won’t bind the Crown

(d) Act won’t have retrospective effect

(e) Act does not alter the existing law nor repeal other Acts.

2.3 Interpretation Rules:

Overview

STATUTE – INTERPRETATION RULES

Literal Golden Mischief Purposive EG

(a) Literal rule

The literal rule requires judges to give words their ordinary dictionary meaning.

(b) Golden rule

The golden rule acknowledges that the application of the literal rule may give rise to an absurdity, hence the ordinary sense of the words can be modified to avoid such an absurdity.

(c) Mischief rule

This rule applies where the literal rule cannot be applied due to ambiguity. It seeks to look at the purpose for which the statute was enacted and interpret the statute in light of that.

(d) Purposive approach (especially used in ECJ)

Courts ascertain purpose of statute and give effect to it, whatever the wording of the statute. Some UK judges take a more purposive approach than others

(e) Ejusdem generis

Where general words follow specific words the general words must be interpreted by reference to the specific words used.

2.4 In Chapter 4 we consider the impact of the Human Rights Act 1998 on the interpretation of statutes.