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Case Law: Judicial law

Historical origins of judicial precedent

Judicial precedent is the foundation of the entire Anglo-Saxon legal system. Nowadays precedent is understood as a decision of the court on a specific case, and the rationale for this decision becomes a rule obligatory for all the courts of the same or lower level or in similar cases (Cardozo, 2009). When creating a legal precedent, the judge does not create a new legal norm, but summarizes the fact following from the general principles of law laid down in human nature. In fact, the judge has the right not to apply a legal precedent for any peculiarities of the case, but can also bring a new rule or feel free choosing the precedent out of the huge number of them and explain it in one’s own way. Thus, a judge has very wide powers; and in legal literature, the legal system of the state, which is based on court precedent, is entitled as the one created by the judges (Cardozo, 2009; Gerhardt, 2011).

Establishment of the principle of precedent was undoubtedly promoted by the judicial reform 1873-1875 and all subsequent judicial reforms. As a result, a developed legal system of courts was developed, and high courts were defined whose solutions were developing case law. The centralized system of courts helped to create the conditions for the operation of the precedent principle, strengthening the responsibility of lower courts to follow the decisions of superior ones (Bittleston, 2009). The attempts by individual courts to violate this principle were not successful. Particularly active attempts to take an independent position in the judicial rulemaking process were made by the Court of Appeal. Its fight against the decisions of the House of Lords led to the fact that in some cases, the Court of Appeal did not follow the precedent set by the highest court in the country. However, all these attempts were suppressed by the House of Lords (Demicus et al., 2010).

Judicial reform of the 19th century contributed significantly to the resolution of the conflict between the common law and the law of justice, which by that time ceased to be flexible and was no longer creating new principles. Chancery courts merged with courts of law. As the English jurist R. Walker marks, the laws on the judicial system did more than just put together the implementation of common law and justice: they fused the norms (Bittleston, 2009). However, the complete fusion didn’t occur: first, only procedural norms were factually united, and secondly, the institutions solely developed by the right to justice (the right to trust) are currently being considered by Chancery Division of the High Court. Still, in the 21st century, it is successful enough in protecting property rights.

In some areas of the modern English law, the norms of equity are contrary to the norms of case law. Problems arise despite the fact that the Judicature Acts of 1873 established that in the case of a collision of case law and equity, the latter should be in priority. The interaction of equity and case law can be illustrated by the institute of errors in contract law (Demicus et al., 2010; Hood, 2007).The position of case law in the modern legal system of the UK is defined by statutory law: the circle of relations regulated by law is extending; some norms of case law are now also included into the statutes. The statutes have significantly pushed out the precedents in the areas of law that have undergone the greatest changes. The major reform of criminal law has led to the situation that many formally defined criminal offenses components have obtained legal binding (Zander, 2005).

The main purpose of the development of English law in the early stages was to create a system which would combine univocal interpretation of the law and predictability of the outcome of litigation. But at that time the achievement of this goal was prevented by the incompetence and bias of judges, who often received their position due their status in the society. In contrast to this obstacle, the procedural principle of stare decisis, which recognized the primacy of precedent, was gradually becoming stronger. Thus, judicial decisions (in terms of ratio decidendi, i.e. the part that directly contained the final decision as opposed to accompanying comments) became mandatory for application in subsequent proceedings with similar facts. This occurred both horizontally and vertically in the judicial hierarchy. Horizontally, the courts of same level were guided by and referred to each other. Vertically, the lower courts were required to follow the decisions of higher courts (Zander, 2005; Gerhardt, 2011; Wells, 2009).

There is also a third source of English law. As the United Kingdom is the Member of the European Union, the EU law is the part of the English law. The European Union is predominantly formed by the countries of civil (continental) law, and in this sense, the system of civil law is also present in English law. The European Union court guides the courts of the UK in the interpretation of the EU legislation (Keller & Stone-Sweet, 2008).

In accordance with the so-called hierarchical structure of the judiciary in England there are two types of courts: superior and inferior, although they are served by the judges of the three categories. According to the common classification, the system of superior courts in The UK does not include the House of Lords and the Judicial Committee of the Privy Council due to their exclusive position in relation to the courts of the United Kingdom. After the UK joined the European Communities a new classification appeared in the English literature: called the European Court in Luxembourg became the main in the system of courts (Abraham, 1998).

The House of Lords, as the highest and final court, considers appeals against decisions of the courts of England and Wales, Scotland and Northern Ireland – on civil cases and the verdicts on criminal cases of the courts of England, Wales and Northern Ireland. The particular significance of the House of Lords as the highest court is determined by the fact that its precedents are obligatory to all courts. Thus, the chamber is now free to introduce new rules of law through its decisions, which have the same effect as the rules established by legislative acts (Partington, 2011). The Judicial Committee of the Privy Council is the supreme and final authority for courts of all parts of the United Kingdom. The Committee consists of the Lord Chancellor, the ordinary appellate Lords and a certain number of “secret advisers” appointed by the Crown. As the Judicial Committee is included into the Privy Council of the Crown, its solutions are expressed in the form of a “respectful Council” to Her Majesty. It considers appeals to decisions of the supreme courts of the overseas areas, and in respect to the territory of England – to solutions of the department of Queen’s Bench of the High Court in the so-called “prize” cases, to the decisions of ecclesiastical courts and certain disciplinary tribunals (Baker, 2005; Partington, 2011).

The Supreme Court of England and Wales is the name to three independent higher court in England. The Court of Appeal, High Court and Crown Court (since 1971). Their structure and jurisdiction are governed by the new Law of 1981 on the Supreme Court. The Court of Appeal in 1966 is divided into two departments: civil and criminal. The president of the Court is Lord Chancellor, although in reality, these functions are exercised by the Lord Keeper of the Court Rolls, who is also a chairman of the civil department. The Lord Chief Justice presides in the criminal branch. The Act 1981 set the maximum number of judges of the Court of Appeal. There may be no more than 18 of them. The judges of this court are called lords appeal judges, or just the lord judges. For consideration of appeals received by the Criminal Division, the judge of the High Court of Queen’s Bench Division is usually called. Appeals are heard, as a rule (in both locations), by three judges, so that several court compositions can bench. Since 1982, the Lord Keeper of court archives Donaldson, who replaced the famous Judge Denning, allowed a quorum of two judges, and if they diverge in opinion, the appeal is sent to three judges (Gillespie, 2009).

Types of legislation

The UK law can be divided into two inseparable branches: the common (or case) law and statutes – Acts of Parliament.

The essence of common law is that it is created by the courts. The competence to create law is assigned to the courts as a constitutional authority. Thus, basing on the principle of stare decisis (“strictly adhering to the previously solved”), judges apply legal precedents to the facts and circumstances of each individual trial. The degree of validity of judicial decisions depends on the position of the court in the hierarchy of the judicial system. It is understandable that the decision of the highest court in the hierarchy (the Court of Appeal of England and Wales – Supreme Court of the United Kingdom) are obligatory legal precedents for application by the lower courts (Gillespie, 2009; Cownie et al., 2009).

The statutes (Acts of Parliament) are a codified reflection of case law, as in fact they are a set of rules made up from of judicial precedents. In turn, during the interpretation of the legal norms from statutes, judicial precedents extend and specify the latter. There is a sort of cycle of legal norms, in the result of which they are constantly refined by the courts (Cownie et al., 2009). Thus, the legal practice itself is evolutionary modernizing the law. The Parliament only has to sum process up to a logical conclusion by adopting the so-called “acts of legal reforms”, amending the existing statutes and formalizing already actively used norms of law (White, 1999).

Paradoxically, some norm of the law has not yet been reflected in the statutes, and the common law remains to be the only source (Hood, 2007). For example, in the system of the UK law, there is currently no statute that would explicitly recognize the murder as a crime and impose a corresponding criminal liability. It’s common law that recognizes the crime of murder and sets it criminally liable to imprisonment.

Magistrate and crown courts

Magistrates Courts and county courts, where 90% of all civil suits are considered, are local courts. In England and Wales there are about 1,000 magistrates’ courts which are serviced by 25thousand of magistrates, who are not lawyers and do not get paid. They get compensated only travel and subsistence expenses. On average, a magistrate works one day in two weeks. The Magistrates Court is limited to punishment for criminal cases. It can sentence the imprisonment for up to 6 months (with multiple offenses – to 12 months), and (or) to a fine of 5000 GBP Magistrates courts have limited liability jurisdiction in cases of guardianship, adoption, alimony and administrative functions of issuing and revocation of various licenses. Most of their loading is criminal cases in the total order, i.e. without a jury. On average, they have seen nearly 2 million cases per year, accounting for 95% of all criminal cases. More than half of this amount relates to traffic violations. Magistrates Courts also act as specialized courts for juveniles (Abraham, 1998; Partington, 2011).

The Crown Court is a new entity created by the acts of the trial in 1971. It considers criminal cases. Its membership is diverse. Depending on the type of crime, the case can be considered by: 1. The District Judge (a judge ad hoc judicial district in the county or county group); 2. The High Court judge (who is based in the capital, but its members are organizing a circuit court); 3. The Lawyer, who has specialized education and credentials (barrister or solicitor); 4. The Acting judge.

The main link is formed by 570 circuit judges. 1400 recorders are helping circuit judges – they are practicing lawyers, mainly barristers performing judicial functions in Crown Courts (on Criminal Matters), and county courts (Civil cases) up to 15 days a year. Proper selection of candidates and the successful execution of their duties is an essential prerequisite for appointment of district judges (Slapper & Kelly, 2010; Hanson, 2009).Professional judges in the criminal courts and junior judges in civil cases are now the title of district judges. Currently, there is a total of 100 district judges, they consider 9% of criminal cases on simplified procedure, that is, those cases that are not sent to the jury. About 91% of all criminal offenses are considered by a simplified procedure (Hanson, 2009). District judges are full-time magistrates, legal professionals with the experience of a minimum of seven years of practice. Previously they were called paid magistrates. This post was created in the middle of the XVIII century, and the paid magistrates completely replaced the corrupt judges of Middlesex (North London). 150 deputies District Judges help district judges – they are part-time practitioners.

Civil courts

The reform of British procedural law has influenced the content of such basic principles of civil procedure as discretionary and competition. The reformed procedural law is characterized by the presence of the institute of judicial case management, its spread in all the courts and types of disputes, strengthening the judiciary, retreat from the centuries-old scheme, by which the rights and obligations of the parties (and others involved in the case) to the disposal of subject of the dispute and the movement of the case, as well as the opportunities and responsibilities for proving the grounds for the claim and defenses mainly depended on the will of the persons concerned (Slapper & Kelly, 2010; Irvine, 2003; Merryman & Perez-Perdomo, 2007).

One of the directions of contemporary civil law is the differentiation of the procedures for the consideration of disputes or the introduction of three procedures for the consideration of the case (track): 1) the procedure for dealing with small claims (small claims track); 2) accelerated consideration of cases (fast track) and 3) universal (standard) procedure (multitrack). Each procedure is characterized by its specific procedural form. At the same time, this differentiation does not mean separation of a single process into three independent ones; they are united by common fundamental principles and institutions of the sector. The uniqueness and dignity of the British civil procedure lies in the fact that in order to implement the dispute settlement procedures in the early stages, the civil case is subject to thorough study at the preparatory stage of the process, which makes it possible to consider the stage of preparing the case for trial as the main stage of the process. Thus, only a small number of cases initiated reach the trial stage. According to the statistics regularly published in the UK, the vast majority of civil cases (94%) is completed without trial with the imposition of a complete solution (Andrews, 2011).

The provision of a legislative framework for the targeting of justice, the emergence of the concept of active judges, the differentiation of the procedures for dealing with disputes and many other novelties introduced in the modern procedural law have influenced the form of completion of the proceedings of disputes in the courts of first instance. Undertaken changes in civil legislation have developed the provisions laid down by the previous legislation and filled the final acts with the new content (The National Archives, 2011). The forms of completion of disputes’ consideration are both complete solutions, and specific types of decisions, among which are judgments by default, summary and coherent solutions. Termination of legal disputes’ consideration may also be without adjudication. The specificity of the new Procedure Code is the large number of special rules establishing the procedure for consideration and resolution in the courts of specific types of civil cases. This kind of particular regulations regulated by special rules is intended to simplify and accelerate the trial of civil cases.


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