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Table of Contents

Ideas and institutions

Frontmatter

Chapter 1. An introduction to law and legal reasoning

Abstract
This book is about the techniques that are available to lawyers when they are handling the law. In broad terms, the law itself may be found easily enough in Acts of Parliament (otherwise known as statutes), which are primary legislation; certain things done under the authority of Acts of Parliament, which are secondary (or delegated or subordinate) legislation; the decisions of the courts themselves, which collectively make up the common law; the system of European Union (previously known as European Community) law; and, increasingly, the law developed in the European Court of Human Rights. However, the underlying theme of this book is that, whatever sources of law are being used, legal method, when properly understood, is a creative process. More particularly, legal method provides a stimulating mixture of relatively abstract reasoning and the use of language in order to achieve practical results.
Ian McLeod

Chapter 2. The classifications of English law

Abstract
You will rapidly discover that lawyers have analyse their material according to existing schemes of classification. Unfortunately, some of the most basic terms in these schemes have a variety of meanings, depending on the context in which they are used. However, this chapter explains most of the major variations, at least to the extent of sketching an overall context within which specific topics may be placed, and introduces some of the technical terminology which you need to master. The chapter concludes with a discussion of the distinction between those matters which are regarded as being issues of fact and those which are regarded as being issues of law, and explains why the distinction matters.
Ian McLeod

Chapter 3. The jurisdictions of the principal English courts

Abstract
This chapter outlines the jurisdictions of the principal English courts, and the correct way to refer to their judicial personnel. (Chapter 5 deals with the jurisdiction of the European Court of Justice.)
Ian McLeod

Chapter 4. The constitutional context of legal method

Abstract
One of the major concerns of legal method is to identify the scope of the courts’ power to develop the law. It follows from this that, although the study of constitutional law is a substantial exercise in its own right, the study of legal method must include at least an overview of the legal basis of the constitution as the foundation of any real understanding. This chapter, therefore, considers the legal framework of the British constitution generally, while Chapter 5 considers various aspects of the European Union context, and Chapter 6 deals with the growing importance of an awareness of the place of human rights within legal method.
Ian McLeod

Chapter 5. European Union law and English law

Abstract
This chapter begins with a brief account of the evolution and structure of the European Union (EU), culminating in the fundamental changes introduced by the Treaty of Lisbon 2007 (ToL), which came into force in December 2009. Having established the broad context of the EU, the chapter then deals in substsantially greater detail with the impact of EU law on English law, and thus its relevance to English legal method.
Ian McLeod

Chapter 6. The protection of human rights and fundamental freedoms

Abstract
This chapter considers the ways in which English law seeks to deal with the protection of human rights and fundamental freedoms (a phrase which is usually abbreviated simply to ‘human rights’). More particularly, it emphasizes the position under the Human Rights Act 1998, almost all of which came into force on 2 October 2000, although it had been possible to bring some provisions into force soon after the Act received the Royal Assent. (Delays in bringing statutes into force are common: see page 275.) However, by way of establishing the context within which the Act was passed, but without wishing to pre-empt Chapter 14’s wider discussion of the suitability of the common law as a vehicle for law reform, it will be useful to begin by illustrating the less than wholly consistent way in which English law had previously protected human rights.
Ian McLeod

Chapter 7. Finding, citing and using the sources of law

Abstract
When you are looking for the law you will usually use textbooks, periodicals, law reports and statutes, in either paper or electronic form. This chapter examines each of these in turn, as well as providing a brief overview of some of the more readily accessible sources of Community law and materials on the European Convention on Human Rights.
Ian McLeod

Case-law and precedent

Frontmatter

Chapter 8. An introduction to the doctrine of binding precedent

Abstract
Briefly, the doctrine of binding precedent states that all courts bind all lower courts, and some courts, at least to some extent, also bind themselves. The hierarchy of the courts, which was outlined in Chapter 3, clearly becomes relevant in the present context. In this Part we will examine the operation of the doctrine of precedent in some detail, both in conceptual terms and through each of the superior courts.
Ian McLeod

Chapter 9. Ratio decidendi and obiter dictum

Abstract
Although the doctrine of binding precedent states that all courts bind all lower courts and some courts, at least to some extent, also bind themselves, it would be wrong to conclude that everything contained in a decision is of equal weight. More particularly, the traditional view holds that there is a crucial distinction between the ratio decidendi (commonly reduced to ratio) of a judgment, which will be the binding part, and the obiter dicta (commonly reduced to dicta, or, in the singular, dictum) which will be the non-binding part.
Ian McLeod

Chapter 10. Vertical and horizontal dimensions of precedent

Abstract
Chapter 3 contains a diagram showing the hierarchy of the courts (see page 44), and Chapter 8 contains the general proposition that all courts bind all lower courts, and that some courts, at least to some extent, also bind themselves (see page 125). The first half of this proposition can conveniently be described as the vertical dimension of precedent, and the second half as the horizontal dimension.
Ian McLeod

Chapter 11. Does the Supreme Court bind itself?

Abstract
In Austin v Southwark London Borough Council [2010] UKSC 28, [2010] 4 All ER 16, Lord Hope DP, giving the leading judgment of the Supreme Court (which had come into being less than a year before) expressly stated that the approach of the House of Lords to the self-bindingness of its own decisions was ‘part of the established jurisprudence relating to the conduct of appeals in the House of Lords which was transferred to this court by s. 40 of the Constitutional Reform Act 2005’. The discussion in this chapter is, therefore, able to proceed on the basis of the body of House of Lords’ authority, which may otherwise have been considered to be of historic interest only. More particularly, this chapter considers the extent (if any) to which the principle of self-bindingness at the highest level in the judicial hierarchy does (and should) differ between civil and criminal cases. However, it begins by setting the historical context from which the current attitude to that self-bindingness has evolved.
Ian McLeod

Chapter 12. Does the Court of Appeal bind itself?

Abstract
This chapter discusses the way the doctrine of precedent operates in the Court of Appeal. The primary concern is to identify the extent to which the court binds itself, but some cases also raise the question of how, if at all, the principles governing this question at this level in the judicial hierarchy differ from those which operate in the Supreme Court (and formerly the House of Lords) and whether they should do so. The distinction between civil and criminal cases is sometimes said to be relevant, so this chapter proceeds on the basis of that classification.
Ian McLeod

Chapter 13. Does the High Court bind itself?

Abstract
As we saw in Chapter 3, the High Court has three types of jurisdiction, namely first instance, appellate and supervisory. This classification becomes relevant again in the context of the doctrine of precedent because the High Court’s attitude to its own decisions will depend to some extent on the jurisdiction which is being exercised. The various jurisdictions will now be considered in turn.
Ian McLeod

Chapter 14. Arguments for and against judicial law-making

Abstract
The previous chapters in this Part have all contained material describing and assessing the basic concepts which operate within the doctrine of precedent and the ways in which the courts use, or refuse to use, the doctrine to develop the law. At this stage, however, it will be useful to discuss the practice of judicial law-making as a whole. It is convenient to do so by surveying, in turn, a number of its perceived strengths and weaknesses, before concluding with a consideration of its constitutional limitations.
Ian McLeod

Chapter 15. Precedent and principle in the European Court of Justice

Abstract
Although most legal systems have no doctrine of binding precedent, there are nevertheless good reasons why the courts of any legal system should generally follow their own decisions. (See page 126.)
Ian McLeod

Legislation and legislative interpretation

Frontmatter

Chapter 16. An introduction to statute law and statutory interpretation

Abstract
This chapter deals with a variety of matters by way of introduction to the study of English statute law and statutory interpretation. It will also help to put the doctrine of the legislative supremacy of Parliament into a practical context.
Ian McLeod

Chapter 17. Statutory drafting

Abstract
According to Radcliffe and Cross, ‘few matters in English history are more controverted than the origins of Parliament’, although it seems to be reasonably clear that it was initially ‘some sort of special and formal gathering about the King … an occasion … rather than a body or an institution‘. (The English Legal System, 6th edn, 1977, p. 53.) Additionally, at least two further things are reasonably clear. First, Parliament dates from very shortly after Magna Carta. Secondly, as the French origins of the term itself clearly denote, Parliament began life as a talking-shop.
Ian McLeod

Chapter 18. Plain meanings, mischiefs purposes and legislative intention

Abstract
It is tempting to assume that the process of statutory interpretation simply requires the identification and application of the literal (or plain) meaning of the enacted words. In fact, however, this approach (which may be termed simple literalism) is fundamentally defective, because it proceeds on the false assumption that a word, or a group of words, will always have a plain meaning. The truth of the matter is that many words have a variety of meanings, and the only way of identifying their meaning on a particular occasion is by reference to the context within which they are used. This proposition is not limited to statutory interpretation, as the examples at page 10 illustrate.
Ian McLeod

Chapter 19. Modern statutory interpretation in practice

Abstract
As we saw in Chapter 17, the technique which we labelled simple literalism is seriously defective and no longer characterizes the judicial approach to statutory interpretation. In the words of Francis Bennion, one of the leading contemporary commentators on statute law and statutory interpretation and a former Parliamentary Counsel: ‘nowadays, a legislative drafter … never intends the literal rule to be adopted.’ (Understanding Common Law Legislation: Drafting and Interpretation, 2001, p. 44.)
Ian McLeod

Chapter 20. Legislative interpretation in the European Court of Justice

Abstract
Historically it may have been legitimate to characterize the principal distinction between common law and civil law styles of interpretation in terms of the contrast between simple literalism and purposivism. Also historically, the matter was of largely academic interest, since very few practitioners of English law would ever come across laws originating from civil law jurisdictions. However, the reception of EU law into English law has meant that the civil law style of interpretation as practised by the Court of Justice (which, includes the General Court) is now of immediately practical importance to English lawyers.
Ian McLeod
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