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The system of precedent in the English legal system in Comparison to the Europen Court of Justice
1.1 System of precedent in the English legal system
The rule of stare decisis is the most important characteristic of the practice of precedent in the English legal system1 and the main distinction to the judicial process in civil law jurisdictions. The rule of stare decisis (= to stand by decisions), as Cross/Harris call it, is nothing but a synonym for the doctrine of binding precedent2. This doctrine is largely concerned with pure questions of law, not with questions of fact3. In general, then, only a decision on a point of law can constitute a precedent. Therefore, to constitute a binding precedent a particular decision has to match two qualifications. The first one has to be seen in the necessity that it really has to be a decision and not a mere obiter dictum, which is some kind of aside or statement, made by the way of deciding the case. The second qualification required is that the doctrine of precedent depends on the relative status of the courts involved. Decisions made by the House of Lords bind all lower Courts, and usually the House of Lords itself, although the European Court of Justice (ECJ) is the highest authority as far as EU matters are concerned4. Despite of having claimed the right to overrule old decisions, the House of Lords has not used this right excessively yet. The Court of Appeal is, apart from some exceptions5, bound by himself and the lower courts are bound to its decisions, too6. At least, the decisions of Divisional Courts bind all lower Courts, whereas all decisions of lower courts are not binding to anyone, a characteristic that can easily be seen in the fact that reports of decisions of such courts are seldom published widely. After having shown these basic and main principles of the doctrine of precedent, we now should have a closer look at this doctrine.
The idea of precedent is that each judge tries to apply to new combinations of circumstances those rules of law, which can be derived from legal principles and judicial precedents7. Although these judicially created rules come into existence in a completely different way from the ones, which are legislatively brought into life, they have to be regarded as legal rules among other legal rules8. In that sense you might say, that judges following precedents are doing nothing different but following an established legal rule. In order to give a better understanding in how the system of precedent in the English Legal System really works, it is necessary to have a look at the ratio decidendi and the obiter dictum, both of which are part of a decision, as the distinction between these is vital for the system of precedent to work properly. The ratio decidendi is an opinion of a judge, which is necessary for the decision in the particular case, and that, which is obiter dictum, remarks in a judgement, which is made merely in passing9. But what do we need this distinction for? The system of precedent requires each judge to look at previous cases in order to get to know how to deal with a new, recent case. It is easy to imagine, that the growing number of cases produces a large amount of decisions. If a judge could choose among different cases and different parts of a case, he could easily just pick up the part of a decision he is intended to use in order to reach a certain decision. Therefore there would not be any problem to find a quotation in a precious case, which enables the judge to make a decision in the way he wants to. Thus there is the need for the requirement to use just the ratio decidendi. It makes the judgements much more precise and predictable10, as it requires each judge not to find just useful arguments but the legal reasons for a particular previous decision, because it are those, which are binding11.
1.2 The practice of precedent in a civil law jurisdiction: Germany
In civil law jurisdictions there is not such a system of precedent as it can be found in the English legal system. In Germany, for example, there is no precedent at all. As a result of the German experiences with the legal system during the Third Reich12, the judge of modern Germany has every freedom in his decisions. As long as his judgements are within the legal framework, especially the “Grundgesetz” (constitution), he is provided by the “Grundgesetz” (Articles 97 I and 20 III) with the biggest independence in his work, being bound only by statute and law, whilst previous decisions in other (similar) cases are not binding on the courts. Thus judicial decisions are not a binding formal source of law at all.
But, in fact, there are some decisions of the “Bundesgerichtshof (BGH)” or “Bundesverfassungsgericht (BVerfG)” (Federal Constitutional Court), which in practise are almost binding, at least as far as the interpretation of the statutes is concerned. But, and I have to lay emphasis on this, the judges are completely free to interpret the statutes in a way different from the one the BGH proposes, as long as they obey the rules of interpretation and as long as they do it within the legal frame of statute and constitution. Here you can see, that the decisions of the highest German courts are not binding in the sense a precedent is binding; the situation a judge is in when he has to make a decision is a completely different one. At first he looks at the new case, then at the statutes and afterwards, if he wants to have a clear picture of how a particular part of a statute might be understood, he tries with the help of “Kommentaren” (commentaries) to discern the general trend of decisions on this particular point including the decisions of the highest courts, if there are any related to the statute in question13. Of course, most of the courts in Germany follow those decisions in their way of interpreting certain unclear statutes or those, which contain “unbestimmte, auslegungsbeduerftige Rechtsbegriffe”. These are paragraphs, which need a certain framework to be useable, and this framework consists of an interpretation, which is related to some kind of recent understanding of a certain word, the society as such has, a good example is paragraph 242 BGB14 (performance according to good faith). These “unbestimmte Rechtsbegriffe” make the statutes quite flexible, but they can be misused as well, as you can see in the fact that the “Buergerliches Gesetzbuch” is in use for 101 years now; it is not difficult to see, that this period includes the Third Reich with its inhuman ways of interpreting the law15. When you have a look at a typical German legal commentary for example at the problems paragraph 635 BGB comes with16, you easily get the impression, that the German legal system does not know precedent as such, but that it is absolutely necessary to know the decisions of the BGH and BVerfG, if you want to be a proper judge, lawyer, or solicitor.
2.1 Differences between the practice of precedent in the European Court of Justice and the English model of precedent
In comparison to the practice of precedent in the English legal system the European Court of Justice shows a different picture. First of all, the European Court of Justice does not feel bound to its own previous decisions17. While the House of Lords is usually bound to its decisions (see above), the European Court of Justice freely exercises its right to reconsider its previous decisions18. But, apart from this fact, there are even more differences between the practice of precedent in the European Court of Justice and the English legal system. In contrast, at least as far as preliminary rulings are concerned, to precedents in the English legal system, the cases the European Court of Justice decides are not binding to all the lower (which in this context means national) courts19. This system, in fact, is not strict, because in some cases the European Court of Justice seems to regards its decisions as being binding in other cases. Having a closer look at the way, the European Court of Justice frequently introduces a statement of the law, this immediately reminds you of the way, an English judge would proceed. “It’s well established case law” or “as the court has consistently held” are common phrases in the decisions of the European Court of Justice. But the European Court of Justice neither explains why it is following a previous decision or not, nor does it draw any apparent distinction between ratio decidendi and obiter dictum, which is essential in an English decision. Furthermore the decisions of the European Court of Justice are, especially from the English point of view, short and dogmatic in tone, with much abstract discussion but a less detailed examination of facts - a style that can be found in decisions of the German Bundesgerichtshof and Bundesverfassungsgericht as well. The absence of separate concurring and dissenting judgements is a further characteristic of the decisions of the European Court of Justice, as well as the interpretation of the Treaty provisions in the light of their spirit rather than their text. This absence of any discussion of precedent and the abstract style might make the decisions of the European Court of Justice more difficult to understand. But all these characteristics are necessary in order to make the European Court of Justice flexible enough to cope with the problems that might occur in the future. Decisions of the European Court of Justice could otherwise only be affected by amendments to the Treaties, which are rather unlikely from a practical point of view.
2.2 Differences between the practice of precedent in the European Court of Justice and the approach to precedent adopted in civil law jurisdictions
As I have already mentioned above, there is no system of precedent as such in civil law jurisdictions. But, apart from that, the extent to what the practice of precedent in the European Court of Justice differs from the one in civil law jurisdictions is not as big as one might expect. It is true that the style of judgements and the opinion, that statutes are the sources of law has been carried over from civil law countries like Germany and France to the European Court of Justice20. But, keeping the influences of the French and the German legal systems on the European one in mind, there are even some similarities between the two different approaches to precedent, they are not very apparent, though. So, in a way, the European Court of Justice generally “adheres” to precedent21, in referring to paragraphs from previous decisions or referring to these decisions by name. This is a proceeding that can be found in the decisions of a higher German Court as well. It makes it easier for the judge, because he does not have to repeat all his arguments, but can build upon them, introducing new aspects he considers important for a certain decision. We have already seen, that the European Court of Justice does not draw any distinction between ratio decidendi and obiter dictum. This distinction is unknown in German courts, too, because the problems discussed in a certain decision are always clearly related to a certain paragraph or statute, and only those arguments are given, which are necessary to interpret the paragraph or statute in question properly; personal opinions or statements made by the way are not very welcome in those decisions22. Furthermore, the style of decisions is very abstract as well, the judges in civil law countries prefer to make them as short as possible, reaching a high level of abstraction.
Finally, you can say, that the approach to precedent in civil law jurisdictions as the German one does not differ very much from that of the European Court of Justice, as far as the highest courts are concerned. Neither the European Court of Justice nor for example the Bundesverfassungsgericht would ever accept a system of precedent as a theoretical background. But, as it is more practical and shows a certain steadiness in their decisions (the highest courts in Germany for example have the duty to develop the interpretation of law and to give stability to the legal system) not by making law but by interpreting it on a scientific level, they bear the cases decided in mind.
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1 See Brown/ Kennedy, p. 343.
2 See McLeod, p. 126.
3 See Aiyah, p. 198.
4 See Aiyah, p. 199.
5 See Aiyah, p. 200.
6 See Cross/Harris, p. 5; Aiyah, p. 199-00.
7 Per Mr Justice Peake in Mine Mouse v. Rendell (1833) 1 CL & Fin 527, 546.
8 See Benditt, p. 106.
9 See Cownie/Bradney, p. 92.
10 See Cownie/Bradney, p. 92.
11 See Cownie/Bradney, p. 92.
12 See Ruethers, Bernd: Entartetes Recht.
13 And there normally are.
14 English version of the German Civil Code in the UWA Law Library: The German Civil Code, NorthHolland Publishing Company, Amsterdam 1975 (KKC 35.G3).
15 See Ruethers, Bernd: Entartetes Recht.
16 See BGHZ 58,85ff; BGH NJW 1982, 2244, 2245; the latest one is BGHZ 115, 32, 34ff; the problems of paragraph 635 BGB in Medicus, S. 353ff .
17 See Cross/Harris, p. 16.
18 See Cross/Harris, p. 16; Brown/Kennedy, p. 345 and p. 347; Bulmer LTD and Another v. Bollinger SA and Others, England, Court of Appeal (Civil Division), 22 May 1974, in Oppenheimer, p. 735, 741.
19 See Cross/Harris, p. 16; Bulmer LTD and Another v. Bollinger SA and Others, England, Court of Appeal (Civil Division), 22 May 1974 in Oppenheimer, p. 735, 741.
20 See De Cruz, p. 161.
21 See Cross/Harris, p. 17
22 In essays at a German university they are strictly forbidden.