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Book

Cover Learning Legal Rules
Learning Legal Rules brings together the theory, structure, and practice of legal reasoning in order to help the reader to develop both their knowledge and reasoning skills. It provides techniques of legal research, analysis, and argument, and explains the operation of precedent as well as effective statutory interpretation. When studying law, it is easy to become focused on the substantive aspects of the subject—the concepts, rules, and principles that go to make up contract, tort, crime, etc. In order to study and practise law effectively, it is essential not only to understand what the legal rules are, but also why they are as they are, and what consequences they might have. This requires that you develop the abilities that are the core focus of this book: to find and make sense of the primary and secondary sources of law; to interpret and apply authorities; to construct arguments both about the facts of a case, and as to how and why a particular authority should or should not be applied in a given situation, and to write clearly, and in an appropriate legal style, making reference to authority as necessary, in the proper academic form.

Chapter

Cover Legal Skills

7. Using cases  

This chapter explains how to use cases. It first looks at the ‘anatomy’ of a law report, before considering how the key legal principles can be extracted from the case. Once the legal principles are known it considers the extent to which those principles are binding on other courts via the doctrine of judicial precedent. Finally, it examines the impact of both the Human Rights Act 1998 and EU law on the operation of precedent.

Chapter

Cover Legal Skills

7. Using cases  

This chapter explains how to use cases. It first looks at the ‘anatomy’ of a law report, before considering the means by which the key legal principles can be extracted from the case. Once the legal principles are known it considers the extent to which those principles are binding on other courts via the doctrine of judicial precedent. Finally, it examines the impact of both the Human Rights Act 1998 and EU law on the operation of precedent.

Chapter

Cover Legal Systems & Skills

5. Case law  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter first discusses the fundamental distinctions between common law and civil law, an important aspect of which is the role of judge-made law. It then examines the operation of the doctrine of precedent—the means by which law made in earlier cases binds the reasoning of some courts in later cases. This involves the skill of identifying statements of law, and the skills involved in applying those earlier statements, or alternatively avoiding their impact. It then considers the arguments for and against the roles of judges and legislators in making law.

Chapter

Cover Legal Systems & Skills

5. Case law  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter first discusses the fundamental distinctions between common law and civil law. It then examines the operation of the doctrine of precedent, and considers the arguments for and against the roles of judges and legislators in making law.

Chapter

Cover English Legal System

5. The doctrine of judicial precedent  

This chapter considers an essential source of law in the English legal system: judicial precedent (or ‘case law’). The rules and principles of the doctrine of judicial precedent are explored, including how precedents are created, developed, and followed. The chapter analyses the rule that forms the precedent—the ratio decidendi, or the reason for the decision—as well as the importance of other judicial statements that do not form part of those reasons—the obiter dicta. The principle of binding precedent is captured by the expression ‘stare decisis’ (stand by what is decided) and binding precedent relies on a hierarchy of courts. The hierarchy can help to establish whether a particular ratio decidendi binds a particular court and whether an appellate court is bound by its own previous precedents. The chapter is packed with case law examples and highlights the role of non-binding precedent which may still be deemed persuasive for a particular court. The relationship between the English courts and the Court of Justice of the European Union (EU) and the European Court of Human Rights (ECtHR) is considered. Finally, the chapter considers how a court may avoid following a particular precedent by the process of overruling, distinguishing, or reversing.

Book

Cover English Legal System

Helen Rutherford, Birju Kotecha, and Angela Macfarlane

English Legal System provides understanding of the operation of the legal system which is essential to the laying of a solid foundation on which to build further legal study. After offering practical advice on how to study the English Legal System, there is an overview of the nature of law, the sources of law, how the English legal system operates, the courts of England and Wales, and some of the important institutions and personnel of the law. How legislation is made and how it is interpreted is discussed. How judges make law and how this process is governed by the doctrine of judicial precedent are explored. The legal precedent set by a case the ratio decidendi, and other statements of law, obiter dicta, are explained. The book considers the impact of membership of the European Union (EU), being a signatory to the European Convention on Human Rights (ECHR), and Brexit. The institutions and personnel of the law: juries, judges, and lawyers are covered. The criminal process, from arrest to trial, to sentencing, is explained and analysed. Resolution of disputes through the civil courts and tribunals is explained, as is the civil process. Alternative methods of dispute resolution are considered.

Chapter

Cover Learning Legal Rules

11. Understanding Legal Reasoning and the Future of Law  

This concluding chapter focuses on legal methods more conceptually. It aims to develop in readers a deeper understanding of what is involved in legal reasoning, understood primarily as the logical and argumentative forms of reasoning used in adjudication. It goes on to explore the question whether legal rules act as a significant justification for or constraint on judicial decision-making, as explained through the competing lenses of two important methodologies: legal formalism and legal realism. The significance of this conceptual debate about legal reasoning is illustrated with reference to current attempts to model legal decision-making through digital expert systems and AI, and these processes are used to highlight a number of themes and issues from earlier chapters in the book.

Chapter

Cover The English Legal System

3. Domestic Sources of Law: Case Law  

Alisdair A. Gillespie and Siobhan Weare

This chapter continues the discussion of sources of domestic law, focusing on material produced by the courts through cases. It covers the reporting of cases, the hierarchy of courts, legal principles, and the operation of precedent. The courts operate a system of precedent known as stare decisis (‘let the decision stand’). The type of precedent set depends on the court sitting, with the most complicated rules occurring in the Court of Appeal. As a general rule of thumb, the court setting the precedent will bind every court below it but the real question is under what circumstances that court is bound by itself.

Chapter

Cover English Legal System Concentrate

4. Sources of Law II: Case Law  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter focuses on case law, a major source of law providing for the interpretation of statutes and the application of law to particular circumstances. Case law, also known as the common law, is a set of judge-made rules that have either a binding or persuasive effect on future cases. Judge-made means that a member of the judiciary has decided a case in a certain way, which has led to the development of that particular piece of law. Certain courts are obliged to follow previous judgments, whereas other can ignore them due to their seniority. Indeed, the doctrine of precedent denotes a system of case law—binding or not—that a lower court may or may not have to follow. Whether precedent is binding is dependent on whether there is a statement of law, as opposed to fact, certain reasoning for that decision (known as ratio decidendi), and the decision of a superior court.

Chapter

Cover The English Legal System

3. Domestic Sources of Law: Case Law  

This chapter continues the discussion of sources of domestic law, focusing on material produced by the courts through cases. It covers the reporting of cases, the hierarchy of courts, legal principles, and the operation of precedent. The courts operate a system of precedent known as stare decisis (‘let the decision stand’). The type of precedent set depends on the court sitting, with the most complicated rules occurring in the Court of Appeal. As a general rule of thumb, the court setting the precedent will bind every court below it but the real question is under what circumstances that court is bound by itself.

Chapter

Cover How to Moot

9. Authorities – advanced considerations  

This chapter discusses what it means to ‘handle precedent’, to ‘interpret statutes’, and to do justice ‘fitted to the needs of the times in which we live’. It provides answers to the following questions: When and how should policy arguments be used? How should foreign case names be pronounced in a moot? What is the correct way to refer to a case? Is it acceptable to give a personal view of the relevant law? When is an authority binding on a moot court? How can one escape from an inconvenient authority? In what circumstances can a case be overruled? How and when can a case be distinguished in law from another? How and when can a case be distinguished on its facts from another? What is the distinction between a judge's finding of fact and his or her decision on the law? What is the status of a judgment of the Divisional Court? Is a ‘Jessel’ better than a ‘Kekewich’? When is a change in the law a matter for Parliament and when is it a matter for the courts?

Chapter

Cover Legal Systems & Skills

14. Writing and drafting  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter focuses on the development and improvement of writing skills by law students. It then goes on to explore why these skills are needed in practice, and how to continue to improve them at that stage. It also explains what are professional drafting skills and provides guidance for good drafting. The section about academia includes comprehensive writing guidance for law students. This includes spelling, grammar, punctuation, structure, layout, language and proofreading. The section then moves on to explaining plagiarism, honesty and academic conduct. Guidance is provided about how to OSCOLA reference, and how this differs from other styles such as Harvard. Supportive technology is discussed, including Endnote and Grammarly. The section then moves on to how to write good essays, with guidance about planning and structuring essays. Reference is made to assessment criteria, and how to meet the criteria at the highest level in an essay. The professional writing and drafting section explores how to further develop the good writing practice mastered at university. It also explores drafting and dictation skills, and how to use a precedent. Writing and drafting templates are provided, including for an email.

Chapter

Cover Legal Systems & Skills

14. Writing and drafting  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter focuses on the development and improvement of writing and drafting skills. The discussions cover writing legal essays; the characteristics of good writing; professional writing; drafting; dictation; and writing and drafting templates.