6. The Doctrine of Judicial Precedent

This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.

11. European Legal Method

Since 1973, the English legal system has been radically affected by what is now called ‘EU law’. EU law takes precedence over all national laws, including legislation. This chapter explains the basic structure and relevance of EU institutions, legislation, and case law, and how these affect the methods of legal analysis we employ. The discussions cover the sources of EU law; the institutions of the EU and their increasingly important role in our law-making; the main analytical techniques employed by European lawyers; and the legal method employed in the Court of Justice of the European Union and the effect of EU law on the drafting and interpretation of UK Legislation.

10. ‘Bringing Rights Home’: Legal Method and the Convention Rights

In the twenty-first century, two important pan-European forces to which English law has been subject are the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) 1998. This chapter discusses the following: the scope, outline, and enforcement of the ECHR to identify and protect fundamental human rights and freedoms and the balancing of these freedoms against the sovereignty of Parliament; its incorporation into the HRA 1998; incorporation under the devolution Acts; the consequences for legal method; and practical and conceptual issues raised by the HRA 1998 around legal research and argumentation. It closes by looking at the prospects of a ‘British Bill of Rights’.

9. Interpreting Statutes

This chapter discusses statutory interpretation: the language used in a statute, the application of the language to the facts, or both. It covers the so-called rules of interpretation: the literal rule, the golden rule, the purposive rule, and the mischief rule, and why we still refer to them; examples of the ‘rules’ in action; secondary aids to construction; the use of Hansard; how judges choose to explain the construction they have placed on the statute; interpretation and the European Union; interpretation and the Human Rights Act 1998; interpreting secondary legislation; and an example of how to analyse a case on statutory interpretation.

7. How Precedent Operates: Ratio Decidendi and Obiter Dictum

The aim of this chapter is to emphasise that legal analysis is not just a question of comparing facts or using a set of balancing scales to see if the facts weigh about the same. The situation is often much more complicated than that. This chapter discusses the following: the development of case law and why cases may be distinguished as well as applied on the material facts; defining ratio decidendi; perception and ratio; ratio and interpretation; obiter dictum; how precedents develop; answering legal questions on precedent; material facts; what can happen to a case; the postal rule cases; and the ‘uncertainty principle’ of cases.

3. Reading the Law

This chapter focuses on an important dimension of legal information literacy: the ability to read critically and with understanding. It provides a set of concepts and tools to help students better understand both primary and secondary legal sources and lays out the three questions that we may ask about a legal text: what kind of law is it; how does it affect existing law; and why was it made? It first explains two kinds of legislation: UK Acts of Parliament; and EU regulations and directives. The chapter then looks at the form of English reports and European Union cases. This is followed by a discussion of how to read legal books and articles.

1. Understanding the Law

This chapter introduces some fundamentals that will underpin the understanding of law and ‘legal method’. It explains those core principles and techniques that underpin the process of legal reasoning. Topics discussed include the concept of law; functions of law, and some of the major functions of law; and the concept of regulation, which extends our understanding of law to forms of delegated legislation and ‘soft’ law and case law as it is developed by the courts. The chapter also discusses Parliament and legislation; the structure and role of the courts; the importance of procedural law; English law and the European Convention on Human Rights; and English law and the European Union.

5. Understanding Legal Reasoning

This chapter focuses on legal reasoning more conceptually. It aims to develop a deeper understanding of what is involved in legal reasoning within the process of adjudication, focusing on how legal arguments seek to provide justification for specific decisions, and to help to predict the form of argument that judges may prefer. Legal reasoning is presented first as a theoretical construction, on which there is much debate, then as a specific process. The chapter explores the philosophical territory of legal theory or jurisprudence, examining the theories that underpin legal reasoning and the way that reasoning techniques are employed in legal contexts.

8. Making Sense of Statutes

This chapter discusses the techniques and problems of analysing the structure of statutes. It describes how statutes are set out, what particular catch phrases mean, and how to make sense of the opaque language often used. It covers drafting styles and practices; the problems of drafting statutes in English law, comprehensibility, and awareness of how the courts are likely to interpret them; examples of drafting practices and how to approach them; techniques for amending earlier statutes, either wholesale or in section; other points on drafting; European legislative drafting; and the style adopted for EU legislation and the problems of ensuring compatibility.

4. From Reading to Writing

This chapter discusses the techniques involved in basic academic legal writing—an important aspect of one of the key skills required by employers, namely written communication. It covers writing legal essays—conveying information, constructing an argument, and applying the information and arguments to the essay title; answering legal problems and considering questions of legal liability; how to present your answers by use of the IRAC system; planning your answers and checking your work; the significance of referencing and the various methods used to reference work; and marking standards used by various quality assurance bodies and how law essays are marked.