Civil Law: Judicial Precedent, Law Making, and the UK Legal System

This essay provides a comprehensive overview of the doctrine of judicial precedent within the context of the legal system in England and Wales. It begins with an introduction to the doctrine, explaining its purpose of providing consistency and predictability in the legal system, and then offers a brief introduction to the legal structure of England and Wales. The essay then delves into the policy of judicial precedent, examining its role in law-making by the judiciary, the concept of stare decisis, and the importance of statutory interpretation. The legal system of England and Wales, based on common law, is examined, highlighting the roles of legislation and the doctrine of judicial precedent. The essay further discusses the hierarchy of courts, from the Supreme Court to the High Court, and how they are bound by prior decisions. It explores the principles of ratio decidendi and obiter dicta and their significance in setting precedents. Finally, the essay touches upon the advantages and disadvantages of judicial precedent, offering a balanced perspective on its impact on the legal system.

Running head: CIVIL LAW
CIVIL LAW
Name of Student
Name of University
Author Note

1CIVIL LAW
Introduction
The doctrine of the judicial precedent can be described as the principle which binds
the subordinate courts to be following the previous judgments of the superior courts. The
main purpose for applying the principle of judicial precedent is to provide consistence and
predictability in the legal system. The principle of judicial precedent can be understood as
providing a guideline for the judges to make decisions in the similar disputes so that it
ensures predictable outcomes for cases having similar facts. In the United Kingdom the
judges are bound by the doctrine of judicial precedent by way of stare decisis under the
common law provisions. There is a debate among the scholars about the applicability of the
principle of precedence in the process of law making by the judiciary in England and Wales1.
The courts in UK except the higher courts can be seen as being subjected to the precedents
that have been set by the superior courts. This paper will discuss in detail about the doctrine
of judicial precedent in the law making process in England and Wales. In this context the
paper will provide the readers with a brief introduction to the legal structure of England and
Wales. The paper will then proceed to discuss about the policy of judicial precedent and its
role in the process of making law by the judiciary. In the paper a detailed discussion would
also be done about the role of statutory interpretation in the process of stare decisis.
Legal System in England and Wales
In England and Wales the legal structure is operated under the common law using
both the combination of the legislations and the precedents of case laws. There is no single
legal system in the United Kingdom as the system had been created with the help of the
political unions of the countries that had been considered to be independent in the past. In the
United Kingdom the main sources of law include the legislations and the common law
1 Bankowski, Z., MacCormick, D.N. and Marshall, G., 2016. Precedent in the United Kingdom. In Interpreting
Precedents (pp. 315-354). Routledge.

2CIVIL LAW
doctrine of judicial precedent. Legislations are all the laws that have been created by way of
the legislature. In the UK the most important legislations are the Acts of the Parliament.
Another source of law in the United Kingdom is the common law which requires the
judiciaries to be following the principle of stare decisis for the similar past decisions of the
higher courts. In the legal system of the United Kingdom the Supreme Court is considered to
be the highest court for all the civil and criminal cases in England and Wales. The Supreme
Court can be seen as having the authority to be interpreting the laws in the United Kingdom.
However, there is a limit to the power awarded to the Supreme Court for the interpretation of
the laws. In England and Wales the court system can be observed as being headed by the
Senior Courts of England and Wales. The Superior Courts in the England and Wales can be
observed as consisting of the Court of Appeal, the High Court of Justice and the Crown
Court. The English legal structure can be seen as being administered by the courts present in
the England and Wales. The main basis of the common law is the principles set by the
English Law. The English Legal System has a separate legal system which can be considered
as distinct from the legal system based on the legal system.
Doctrine of Judicial Precedent
In the legal system of England and Wales no major codification has been done
towards the law. The legal system in the England and Wales has been developed by way of
the judiciaries in the courts through the application of the statutes, precedents and reasoning
that have been developed on a case by case basis for providing explanatory judgments of the
principles in the law that can be considered as explanatory2. The judgments of the cases are
binding towards the analogous cases in the future by way of the norm of stare decisis. The
principle of judicial precedent can be defined as the standard for binding the subordinate
courts for following the preceding rulings of the higher courts. The chief purpose for the
2 MacCormick, D.N., Summers, R.S. and Goodhart, A.L., 2016. Interpreting precedents: a
comparative study. Routledge.

3CIVIL LAW
application of the the principle of judicial primacy is to provide consistence and predictability
in the legal system. The doctrine of judicial precedent can be observed to be providing a
standard for the judiciaries for making resolutions in the similar disputes so that it ensures
predictable outcomes for cases having similar facts. In England and Wales one of the major
foundations of law is the common law which requires the judiciaries to be following the norm
of stare decisis for the similar past decisions of the higher courts.3 The principle of judicial
precedent can be observed as applying the stare decisis principles to the cases that have
similar factual backgrounds. In other words, the lower courts can be observed as being bound
towards the application of the permissible principles that have been set down by way of the
superior courts in similar precedent cases.
Judicial precedence can be considered as a major source of law. By way of the
judicial precedent the judiciaries are able to create law for referring the same in similar cases
in the future. The principle of precedence is primarily based on the standard of stare decisis
whose literary translation is ‘standing by the decided matters’.4 The judges in the lower courts
are required to be following the binding the precedent where they are required to be
following the previous decisions of the superior courts. The doctrine can be observed as
following two separate principles. The first principle is that any court would be bound by the
decisions either by the higher courts or by the courts in the equal level. The second principle
that is followed in the doctrine of judicial precedent is that cases having similar factual
backgrounds are required to be treated in a similar manner. This principle states that once the
decision in a case is made the subsequent cases having similar facts can use those decisions
as accurate statements of law.
3 Bankowski, Z., MacCormick, D.N. and Marshall, G., 2016. Precedent in the United Kingdom. In Interpreting
Precedents (pp. 315-354). Routledge.
4 Callander, S. and Clark, T.S., 2017. Precedent and doctrine in a complicated world. American Political Science
Review, 111(1), pp.184-203.

4CIVIL LAW
However, there have been many concerns raised by many scholars stating that to
follow the binding decisions might be leading towards decisions by the courts that can be
considered as unjust. The doctrine of judicial precedence is often criticised as being too
rigid5. In the United Kingdom every court present in the judicial hierarchy is bound by way of
the prior decisions by the courts that are superior to them. In the judicial hierarchy, the
topmost court is the ‘European Court of Justice’. The next in the hierarchy is the House of
Lords which are considered as being the Supreme Court in many jurisdictions that are not
concerned by the Law of the European Union. The Appeal Court can be seen as following the
House of Lords in the jurisdictional hierarchy. The Court of Appeal in England and Wales
has two separate divisions- Civil division and Criminal division. Both the criminal and the
civil division of the Court of Appeal are bound by the rulings prepared by the European Court
of Justice and the House of Lords. The Courts of Appeal are also seen as being bound by
their own previous decisions. The only exception is the Criminal division at the time of
deciding cases that are involving the liberty of an individual. The other Divisional Courts can
also be seen as bound by the previous judgments of the European Courts of Justice, House of
Lords and the Appeal Courts. The High Court which comes next in the hierarchy is required
to follow the past decisions of all the courts including the Divisional Courts6.
The House of Lords had also been bound by their preceding decisions since the
ruling that were put into effect by way of the judgment in London Street Tramways v London
County Council [1898]7. However, in the year 1966 the requirement of the House of Lords to
be adhered to its previous decisions was removed by the Lord Chancellor. It was decided that
the Supreme Court has the authority to be departing from its past decisions in case there is a
scope of the decision leading to injustice. Although the Supreme Court or the House of Lords
5 Hitt, M.P., 2016. Measuring precedent in a judicial hierarchy. Law & Society Review, 50(1), pp.57-81.
6 Masood, A.S. and Lineberger, M.E., 2019. United Kingdom, United Courts? Hierarchical Interactions and
Attention to Precedent in the British Judiciary. Political Research Quarterly, p.1065912919853368.
7 London Tramway Co. v London County Council [1898] AC 375

5CIVIL LAW
is not bound by its previous decisions yet judges are seen as following its precedents in
majority of its decisions. In the judgment of R v Caldwell [1982]8 the use of the subjective
recklessness test had been removed by the judges. However, for deciding the case of R v G
[2003]9 the subjective test had been put back for consideration. These cases can be taken as
examples to show the Supreme Court’s authority to be departing from its previous decisions.
The requirement of the Court of Appeal to be bound by the past decisions of the Supreme
Court was challenged by the judges while deciding the cases like Broome v Cassell [1971]10
and Miliangos v George Frank (Textiles) Ltd [1976]11. However, both these attempts were
seen as being rejected by the House of Lords providing that the lower courts in the judicial
hierarchy have no right in exercising their power over the doctrine of judicial precedence. In
deciding the case Young v Bristol Aeroplane Company Ltd [1944]12 it was established that the
Court of Appeal would be bound by its own past decisions. However, there are three
exceptions to this rule. The three rules consist of the rights of the selection between the
decisions in relation to past conflicts, being inconsistent with the Supreme Court decisions
and the refusal of following the decisions made in error. This was challenged by the Court of
Appeal in their decision in Davis v Johnson [1979]13.
The principle of stare decisis refers to the precedence of the legal decisions for
ensuring certainty to the legal structure in England and Wales. The judges are required to be
providing two different states for the judgments upon the decisions made by them. The first
type is the Ratio Decidendi and the second type is the Obiter Dicta.14 The ratio decidendi can
be described as the motive for the verdict. Its exact meaning is the foremost purpose why
judge has reached to the particular judgment. The rule of law can be observed as governing
8 Metropolitan Police Commissioner v Caldwell [1982] AC 341
9 R v G [2003] AC 341
10 Cassell and Co. Ltd. v. Broome 11972] 2 W.L.R. 645
11 Miliangos v George Frank Ltd, [1976] AC 443
12 Young v. Bristol Aeroplane Co Ltd ([1944] KB 718 CA
13 Davis v Johnson [1979] AC 264
14 Hitt, M.P., 2016. Measuring precedent in a judicial hierarchy. Law & Society Review, 50(1), pp.57-81.

6CIVIL LAW
the verdict and, can further be considered as a common statement that is not required to be
involving specific facts in every case. The precedent can be seen as being set for the
application in the conclusion of any prospect case. As an example the ratio decidendi in the
judgment in Donoghue v. Stevenson (1932)15 where the ratio decidendi was the duty of care
owed by any individual for any actions that would be considered as reasonably foreseeable.
The statements that are separate of the scope of ratio decidendi are known as the Obiter
Dicta. As the implication is observed, the key perceptive behind the verdict is not stated by
way of the Obiter Dicta; therefore, Obiter Dicta is not seen as to be binding on the
prospective judgments. Though not a part of the precedent, often times the Obiter Dicta can
be observed as being raised in a prospective case for making certain views towards the laws
to become more influential. An example of obiter dicta can be considered in the Carlill v
Carbolic Smoke Ball Co Ltd (1892)16 case where the obiter dicta would be that in case of an
advertisement is placed for an award of money for any action and the action is completed by
any individual then the performance of the condition in the advertisement would be fulfilled.
Advantages and the Disadvantages
There are certain advantages for binding the courts towards their judicial precedent.
One of the major advantages of the principle of jurisdictive precedent is that a certainty is
provided with its application towards the law. The presence of judicial precedent for cases
with comparable material facts would be helpful towards providing the judges with a general
idea of deciding the case17. Another major advantage of being bound by the judicial precedent
is that there is consistency with the legislations which would help in ensuring fairness in the
treatment of individuals.
15 Donoghue v Stevenson [1932] UKHL 100
16 Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1
17 Baltrimas, J., 2016. Legal precedents and innovation. INTERDISCIPLINARY APPROACH TO LAW IN
MODERN SOCIAL CONTEXT, p.53.

7CIVIL LAW
The main disadvantage of the doctrine of judicial precedent is that due to the strict
application of the canon of jurisdictive precedence it is often observed as putting a restraint
on developing law. Another disadvantage in the doctrine of precedent is that these precedents
can be observed as becoming out of date. An example of such out dated precedent can be
observed in the judgment in R v R [1991]18 where with the change of law that an individual
could be held guilty for the rape of his wife the precedence of the past decisions had become
out dated. As the doctrine is inflexible in terms of it being followed by the lower courts, this
can be considered as a major challenge to those cases whose decisions were considered as
being unjust. Precedent can be considered as being complex in many situations. As can be
observed that there are many cases that have been judged by the court, it is every so often
problematic to look for pertinent former cases. Applying preceding judgments that have been
considered as wrong could lead to an unfair judgment to be taken in a future case. The law
can also be observed as becoming multifarious as has been discussed above, when cases are
differentiated and any new precedent is observed as being formed.
Law making powers of the judiciaries
In the jurisdictions of common law the interpretation of the laws including the
regulations, statutes and constitutions. The courts judiciaries also have limited power to make
laws on the basis of the judicial precedent of past cases in the areas of the legislature where
there is an absence of proper law. These powers can be observed as being limited to the
factual backgrounds of certain cases. For example, the contract law or the tort of negligence
has not been derived from any statutory laws in the legal system of England and Wales.19 The
laws in such situations can be observed as being derived from the previous decisions and
18 R v R [1991] UKHL 12
19 Dworkin, R., 2017. Judicial discretion. In The Rule of Law and the Separation of Powers (pp. 157-171).
Routledge.

8CIVIL LAW
these laws are known as the common law.20 The decisions of the judges under the common
law sets precedent for the courts to be following by way of the principles of stare decisis.
Statutory interpretation
In the United Kingdom, legislations or the statue laws can be defined as the laws that
are present in the written form. They are mostly seen as being formed and implemented by
way of the Parliament, and applied by several bodies of prosecution, and establishments.
Construing the connotation of legislature is not seen as always to be forthright and, in certain
circumstances, the judges can be observed as being called upon for the interpretation of the
statute in compliance with the law and rules that are existing for the purpose of ‘statutory
interpretation’21. In their judgment in the R (Factortame Ltd) v Secretary of State for
Transport (No 2) [1991]22 the interpretation of the statutes are required to be done so as the
treaties and other subsequent provisions in the statute are upheld. Statutory interpretation can
be observed as being compulsory where the complication and ambiguity ascends towards the
application of the law in any specific circumstances. In case of the absence of appropriate
interpretation, failure of fairness and justice will be seen as taking place. In the judgment in R
v. Secretary of State for the Environment expert Spath Holme, (2001)23 it was held that
interpretation of the statute would require to be done for finding the actual intent of the
criminal to be committing is required to be sought after. There are four rules of statutory
interpretations- Golden rule, Mischief rule, Literal rule and purposive approach.24 The golden
rule permits the judiciaries to be contradicting from the consistent and real implication of the
words in the statute or legislation at the time of the construal of any rule. This authorization is
20 Hunter, R., 2015. More than just a different face? Judicial diversity and decision-making. Current legal
problems, 68(1), pp.119-141.
21 Walton, D., Sartor, G. and Macagno, F., 2016. An argumentation framework for contested cases of statutory
interpretation. Artificial Intelligence and Law, 24(1), pp.51-91.
22 R (Factortame Ltd) v Secretary of State for Transport (No 2) [1991] 1 AC 603
23 R v. Secretary of State for the Environment expert Spath Holme, (2001) 1 All ER 195
24 Lowe, D. and Potter, C., 2018. Understanding Legislation: A Practical Guide to Statutory Interpretation.
Bloomsbury Publishing.

9CIVIL LAW
provided for ensuring that there is no irrationality in reaching towards the verdict of the
case25. The mischief rule provides the courts with the authorities for the interpretation of the
act upon the preference of the judges. In the mischief rule, the mischief or the gap that can be
seen as existing in any regulation is being intended to be covered through the help of the
laws.26 The foremost purpose that the Parliament had during the law making process is
essential to be deliberated by the judiciaries while making the interpretations of the statutes27.
As observed by the name, at the time of following the literal rule for construal of any law, the
judges are needed to follow the verbatim and basic connotations of the rule.28 Apart from
these three rules the purposive approach is also used. The purposive purpose is mostly
implemented at the time of the interpretation of the laws of the EU.29 In the system of
common law, the judges can be observed as deciding the rules that would be pertinent to any
case by way of the interpretation of the statutes and the application of the precedent, in which
the methods and the reasons of the decisions of the prior cases are recorded.30
Conclusion
This essay has discussed in detail about the topic of doctrine of judicial precedent in
the process of law making in England and Wales. In this setting the essay has also provided
with a short outline to the legal system of England and Wales to the readers. In England and
Wales the legal system is functioned under the common law by means of both the
amalgamation of the statutes and the precedents of cases. In the UK the key bases of law
comprise of the legislations and the doctrine of judicial precedent under common law. The
essay has also discussed about the doctrine of judicial precedent and its part in the method of
25 Re Sigsworth [1935] 1 Ch 98
26 Gizbert-Studnicki, T., 2015. The normativity of rules of interpretation. In Problems of normativity, rules and
rule-following (pp. 243-254). Springer, Cham.
27 Corkery v Carpenter [1951] 1 KB 102
28 Whitely v Chappel (1868) LR 4 QB 147
29 Pickstone v Freemans plc [1989] AC 66
30 Chiassoni, P., 2017. Statutory Interpretation and Other Puzzles. Materiali per una storia della cultura
giuridica, 47(1), pp.258-276.

10CIVIL LAW
making law by the judges. The doctrine of judicial precedent can be described as the norm for
binding the subsidiary courts for following the preceding verdicts of the higher courts. The
principal purpose for the use of the doctrine of judicial precedent is to provide consistence
and probability in the legal system. The essay provided the readers with the advantages and
the disadvantages of judicial precedent in the legal system. The essay also discussed in brief
the powers of the judiciaries to make law. In the dominions of common law, the
interpretation of the rules comprises of the regulations, statutes and constitutions. The courts
can further be observed as having restricted power to make laws on the basis of the judicial
precedent of past cases in the areas of the legislature where there is an absence of proper law.
In this essay a thorough discussion has also been done about the part of statutory
interpretation in the course of stare decisis. In conclusion to the discussion it can be said that
although there are certain advantages and disadvantages of the judicial precedent and even it
is limited yet the doctrine of judicial precedent can actually be seen as allowing the judiciary
to make laws in England and Wales.

11CIVIL LAW
Bibliography
Books
Bankowski, Z., MacCormick, D.N. and Marshall, G., 2016. Precedent in the United
Kingdom. In Interpreting Precedents (pp. 315-354). Routledge.
Dworkin, R., 2017. Judicial discretion. In The Rule of Law and the Separation of Powers (pp. 157-
171). Routledge.
Gizbert-Studnicki, T., 2015. The normativity of rules of interpretation. In Problems of
normativity, rules and rule-following (pp. 243-254). Springer, Cham.
Lowe, D. and Potter, C., 2018. Understanding Legislation: A Practical Guide to Statutory
Interpretation. Bloomsbury Publishing.
MacCormick, D.N., Summers, R.S. and Goodhart, A.L., 2016. Interpreting precedents: a
comparative study. Routledge.
Journals
Baltrimas, J., 2016. Legal precedents and innovation. INTERDISCIPLINARY APPROACH
TO LAW IN MODERN SOCIAL CONTEXT, p.53.
Callander, S. and Clark, T.S., 2017. Precedent and doctrine in a complicated world. American
Political Science Review, 111(1), pp.184-203.
Chiassoni, P., 2017. Statutory Interpretation and Other Puzzles. Materiali per una storia della
cultura giuridica, 47(1), pp.258-276.
Hitt, M.P., 2016. Measuring precedent in a judicial hierarchy. Law & Society Review, 50(1),
pp.57-81.

12CIVIL LAW
Hunter, R., 2015. More than just a different face? Judicial diversity and decision-
making. Current legal problems, 68(1), pp.119-141.
Masood, A.S. and Lineberger, M.E., 2019. United Kingdom, United Courts? Hierarchical
Interactions and Attention to Precedent in the British Judiciary. Political Research Quarterly,
p.1065912919853368.
Walton, D., Sartor, G. and Macagno, F., 2016. An argumentation framework for contested
cases of statutory interpretation. Artificial Intelligence and Law, 24(1), pp.51-91.
Case laws
Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1
Cassell and Co. Ltd. v. Broome 11972] 2 W.L.R. 645
Corkery v Carpenter [1951] 1 KB 102
Davis v Johnson [1979] AC 264
Donoghue v Stevenson [1932] UKHL 100
London Tramway Co. v London County Council [1898] AC 375
Metropolitan Police Commissioner v Caldwell [1982] AC 341
Miliangos v George Frank Ltd, [1976] AC 443
Pickstone v Freemans plc [1989] AC 66
R (Factortame Ltd) v Secretary of State for Transport (No 2) [1991] 1 AC 60
R v G [2003] AC 341
R v R [1991] UKHL 12
R v R [1991] UKHL 12

13CIVIL LAW
R v. Secretary of State for the Environment expert Spath Holme, (2001) 1 All ER 195
Re Sigsworth [1935] 1 Ch 98
Whitely v Chappel (1868) LR 4 QB 147
Young v. Bristol Aeroplane Co Ltd ([1944] KB 718 CA