ARHIVELE OLTENIEI - Universitatea din Craiova

Some features of the English Legal System 281Because statues are abstract rules of behaviour, without the creative andadaptive work of the judge it would not be possible that fair solutions to be givento concrete disputes that are to be settled.In common law, even when statues are present, they often simpleaddress points of controversy or are written with the expectation that judges willfill in the blanks rather than with the comprehensive approach. Moreovercommon law legal standards are often deliberately vague so as to give judgeswide discretion to rule in a case as they deem fit and fair.The aim of conferring such wide power to judges is to allow themachieve justice but not to allow them exercise this power in an arbitrary ordiscretionary manner. Legal instruments to prevent this from happening arejudicial control of decisions by over turning them in appeals or the fact thatjudges may be dismissed for incapacity or misbehaviour.There are two kinds of precedents. The first of them, the long heldcustom, is traditionally recognised by courts with no need for a previous case tohave been decided on the same issues. The second type of precedent is case lawwhich is granted weight according to a number of factors. Cases are binding andmust be followed as “precedent” when there is involved the same legal issue asin the original case and when the precedent comes from the courts above theinstant court, or the precedent is an earlier decision from the same court. What isbinding is only the “ratio decidendi” which justified the decision. It comes to thejudge of the instant case to statue what the “ratio decidendi” was. There is nopossibility for a judge to disregard earlier decisions but is possible to“distinguish” the decisions of higher courts when they deem it appropriatebecause certain circumstances considered to be essential differ from those of theprevious case. There also exists the possibility for higher courts to overrule aprevious decision when they consider social conceptions, issues or principalsthat justified a certain practice have changed e.g R v R [1991] 4 All ER 481.Naturally, Parliament may replace any judgement coming from anycourt by regulating or amending legislation.The doctrine of stare decisis is a very important feature of common law.The point of precedent is to facilitate consistency in decisions to confer stabilityand predictability to common law and to enable appellate courts to communicateand constrain lower level courts effectively.At the same time, judges are given the possibility of changing legal rulesin order to allow the law to evolve, to adjust to new circumstances and, overtimeto become more efficient.The doctrine of precedent operates to deny courts law-making power. Itis only when courts overrule decisions that they exercise a normative power andits point is to enable courts to alter the law.Beside the power of the judges to interpret in order to apply law toconcrete disputes in the English legal system, judges have certain powers whichare not known to exist in civil law systems, which make the judiciary a morepowerful political force than in civil law countries.