how english courts develop english law

According to Partington (Chapter 3, Introduction to the English Legal System), the English courts contribute to the development of English law in three main ways.


1) The development of common law

The power of the judiciary here is based on the doctrine of 'separation of powers' which is the idea that power should not be concentrated into the hands of one person or one body.

This concept is recognised in the Constitutional Reform Act 2005 which states that: "The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary".

There is also the doctrine of precedent, which is the idea that once the principle of a law has been established in one case, it must be applied in the same way in later cases.

Not all court decisions establish precedent, though. The courts are arranged hierarchically. Decisions below the level of High Court are not regarded as precedent.

Click the thumbnail to the left to view a diagram on the website of Her Majesty's Courts Service (HMCS).


With regard to precedent, there are two important terms to note:

• Ratio decidendi - the principle of law which forms the precedent.
• Obiter ditum - any part of the judgement which does not form part of the ratio and so is not precedent (although it can be considered 'persuasive').

Some complications to the principle of precedent:

• facts of a case will never replicate in another case exactly
• so many decisions are reported, one decision may be reached in ignorance of another (then it can be argued that the precedent in question was made incorrectly or per incuriam)
• two separate decisions may be inconsistent with each other so straightforward application can't be made
• House of Lords has power to alter a precedent if they deem is to a case to have been decided wrongly and the law needs to be changed.
  

2) Statutory interpretation

Courts have the power to interpret statutes which can lead to the clarification of wording.

Human Rights Act 1998 also gives courts the power to test legislation against the Act and declare it to be incompatible.

Courts need this power because:

1. statute rules must have a level of generality so can't be precise - the facts and application therefore need to be determined by the courts
   
2. wording can be ambiguous and thus require interpretation

3) Procedural law

Partington gives several examples of how new procedures are developed e.g.:

• day-to-day practice of litigation is regulated by rules drafted by the judiciary (Rules Committees)
• rules of (admissible) evidence are developed by the judiciary
• power of judiciary to hold government departments legally accountable for their actions