The rule of precedent.

One of the main differences between the common law legal system and the Roman-Germanic legal systems is to be found in their definition of the rule of law.
This difference corresponds to the respective importance of caselaw and legislation in the two systems.
Caselaw being regarded as the most important source of law in the common law system.

For English lawyers and their followers in other countries, the legal rules are to be found in the decisions of the superior courts, i.e. the decisions of the Crown Court for criminal cases or the High Court for civil cases; The decisions of the court of appeal and the decisions of the House of Lords.
Both the Court of Appeal and the House of Lords take civil and criminal decisions.

More precisely, the rule of law is to be found in the most important part or core (cœur) of the decision called «the ratio decidendi».

An English decision consists in the statement of the facts of the case, the list and analysis by the judges of the different statutes and precedents relevant of the case and the discussion of them and final rejection(s), these are called the «obiter dicta» and finally, the ratio decidendi in which the judges explain the reason for their decision and the rule of law which they have followed.

The rule of law adopted by the judges can be the same rule of law as in a precedent or it can be a new rule of law in which case the judges will explain why they modified this rule of law and created a new one.

One of the clearest definitions of the ratio decidendi is : The application of the legal rule to the material facts of the cases.
Only the ratio decidendi contains the legal rule, the obiter dicta are never regarded as legal rules.

The specificity of the English legal rule is that it is designed to give a solution to a case caracterised by specific facts.
English lawyers do not look into statutes to find rules of law and they apply legislation as interpreted by previous judges.

The English legal system is a caselaw system in which the decisions of the courts replaced the provisions (dispositions) of the law.

The difference between the rule of law in the Roman-Germanic systems and the legal rule in the English system is sometimes explained in terms of a closed system as opposed to an open system.

The Roman-Germanic systems are closed systems which make a coherent whole in which any question can be solved by interpreting a provision of the law.

English law is an open system which does not have rules applicable to all cases.
To solve a case, an English judge examines the rules of law contained in existing precedents and adapts them to the facts of the case.

If the facts of the case are the same as those precedents, the judge will apply the same legal rule.
If the facts are different, the judge will distinguish the present situation from the the previous one, and will adapt the previous rule to the fact of the case.
Thus, creating a new legal rule, that is why English law is called judge made law.

I Operation of the rule of precedent.

In a system based on caselaw, judges are obliged to apply the decisions laid by their predecessors.
But, all predecessors do not have the same value or the same weight.
Their weight depends on the rank of the court in the judicial hierarchy.
The judicial hierarchy was established by the Judicature Acts (1873-75).

At the top of the hierarchy is the House of Lords, whose decisions are binding on all lower courts in the hierarchy.
Until 1966, the House of Lords was itself bound by its own precedents, but since that date, it has been able to reverse its own decisions.

The High Courts and Crown Courts are binding for inferior courts.

The inferior courts are bound by the decisions of the superior courts but they are never bound by their own decisions.

The European Court of Justice.

Since Britain entered into The European Community in 1972, the decisions of the ECJ are binding precedents for all English courts for under the European Community Acts and under the article177 of the Treaty of Rome. European law is now part of English law.

Nevertheless, if the same point of law is brought a second time before an English court and if the court does not wish to apply the precedent established by the ECJ, it can take the case before the ECJ again, as the ECJ does not apply the rule of precedent and is not bound by its own previous decisions.

It can sometimes obtain a new decision which is then bound to execute.

II The persuasive precedents.

The only precedents which are binding are those laid by the Superior Court.
The decisions rended by other courts like the inferior courts or by prior judicial bodies like the administrative tribunals are never binding.
Yet, they may have a persuasive value and can be used as precedents by judges.

The decisions that can be persuasive precedents are :

1-Decisions from a court which is lower in the hierarchy than the court which must decide the case. For example, the civil division of the CA is not bound to follow a decision from the high Court of justice.
But it cannot do so if the decision is especially to the point.

2-Decisions from a court of another common law country can be used as a persuasive precedent by an English judge.
Thus, decisions from a high court of Australia or some decisions from the American courts have been used as precedents to solve several English cases.

3-Decisions of the judicial commitee of the Privy Council also have a persuasive value.
This court does not belong to the English judicial hierarchy.
It is the ultimate appeal against a decision by the highest court of a Commonwealth country.
Normally, as it does not belong to the judicial hierarchy, its decisions should not be binding precedent for the English courts.
But because the judges who sit in the privy Council are the law Lords who normally sit in the House of Lords, its decisions are regarded by English judges as persuasive precedents.

III Limitations to the rule of precedent.

In theory, the rule of precedent is absolutely binding on all English courts.
In theory, the only remedy to avoid a binding precedent which is unfair or obsolete, is to introduce a bill and to have Parliament pass legislation on the question.
Because of the sovereignty of Parliament, the new act will prevail on caselaw.
But this is a very long process.
In practise, English judges can avoid applying the rule of precedent through the technique of distinction.
They can pretext that the case before them is slightly different from the previous text to modify the rule of law and create a new rule of law.

The scope (portée) of the rule of precedent is also limited by the process of selection of precedents before they are published.
All the decisions of the superior courts are not published.
Those decisions which only apply to law applicable to the case, when the law is obvious and those decisions which are not clear and which can be criticized are not published.

The law reports contain only about : 75% of the decisions of the HL (i.e. some 30 DC every year)
25% of the DC of CA.
10% of the HC anc CC.