#17287 - Case Law - GDL English Legal System

Case law

• Judicial precedent

  • In deciding a case, a judge must follow any decision that has been made by a higher court in a case with similar facts.

  • 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.

  • 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.

  • Under the 1966 Practice Direction, the Supreme Court is not bound by its previous decisions.

• How do judges really decide cases?

  • 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.

  • 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.

  • Very different views have been put forward by other academics.

  • 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.

  • Griffith also thinks that judges are influenced by their personal background.

  • Waldron accepts that judges make political choices but sees no fundamental problem with this.

• When should judges make law?

  • There is no doubt that on occasion judges make law.

  • There is some debate as to when judges ought to make law.

  • When judges make law they...