Sources and Methods of English Common Law John

Sources and Methods of English Common Law John

Sources and Methods of English Common Law John Bell [email protected] Stare decisis and precedent Stare decisis = Being obliged to follow a decision you think is wrong Precedent = Treating previous cases as AUTHORITY reasons for a decision in the present case (strong) OR treating previous cases as INFLUENTIAL reasons for

the present case (weak) Stare decisis et quieta non movere Use of cases in judgments Empirical regularity (practice, not a reason) Good practice to consider (prudential reason) Precedent (broad sense) Something one must consider (obligatory reason)

Precedent (narrow sense) Something one must follow whatever its merits (exclusionary reason) Stare decisis English and Welsh courts Court of Appeal High Court

County Court Crown Court Magistrates Court What does the Supreme Court do?

Final Court for all part of the UK on civil and criminal law Now includes Scots criminal law Final Court on Devolution matters Abstract and concrete review Appeals and references Final Court on Human Rights

Supreme Court, London Behrens v Bertram Mills Circus [1957] 2 QB 1 Style of Judgment It may be unreasonable to hold the owner of a biting dog responsible thereafter for everything it does; but it may also be unreasonable to limit the liability for a tiger. If a

person wakes up in the middle of the night and finds an escaping tiger on top of his bed and suffers a heart attack, it would be nothing to the point that the intentions of the tiger were quite amiable. Devlin J [1957] 2 QB at 17. The ruling Ratio decidendi: the rule necessary for

resolving the issue under discussion Obiter dictum: other observations Responding to arguments of counsel Identifying issues to be resolved in the future The limits of rulings Positive rules Negative rules Distinguishing Following = applying the rule exactly to facts

Strong distinguishing = changing the rule by adding a qualification A+B, but not C = result different from A+B Weak distinguishing = Explaining why the facts in the instant case do not fit within the ruling A+B Distinguishing: Mr Van Osss argument An elephant is ferae naturae

unless it is a Burmese elephant Reading Statutes Local Government (Religious etc Observances) Act 2015 Very detailed provisions presuppose a literal reading of the text by the courts

Rules on local government Very precise definitions provided: Extension to 25 categories of Act aims to be self-contained other local administration But then qualify the application of the definition No Welsh druid prayers! Offas Dyke

Methods of Interpretation Status Rules of practice and legal justification Reference point is the practice of judges Tradition of literal interpretation Reading the text as self-contained Expecting the legislature to correct mistakes More recently purposive approach

Purposive v Teleological Context different More complex legislative process (no clear legislator) Multiple languages Court defines telos then seeks achieve it Purposive Makes use of more defined & public permitted sources Resist strained interpretation

Cross 1. The judge must give effect to the grammatical and ordinary or, where appropriate, the technical meaning of words in the general context of the statute; he must also determine the extent of general words with reference to that context. 2. If the judge considers that the application of the words in their grammatical and ordinary sense would produce a result which is contrary to the purpose of the statute, he may apply them in any

secondary meaning they are capable of bearing. Permitted sources To clarify apparent ambiguity (not to create it) Legislative documents Within text Hansard Policy documents White papers Law Commission Reports

Treaties

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