Sources of Law-Lecture 8

Judicial Decisions
A decision issued by the judge in a case has entered the record of the court. It is called (judgement) and it is only binding the parties to the case.
Such a judgement would have been based on legal principles.
The question is whether such principles can apply to the same cases of a similar kind.
It can be also asked whether the judges have to follow the former decisions of themselves or their colleagues and predecessors?
Affirmative answer of these two questions makes judicial decisions a legal source of law. (England, and all generally all Anglo-Saxon legal systems)
A negative answer to these two questions makes judicial decisions mere interpretative interest and supplementary source of law. (Continental legal systems)

Judicial Decisions- English Practice
When a judge decides a case, he obliged to follow the previous decisions.
The judge must extract from the previous decisions the rule upon which the decisions proceeded and he must apply that rule to the case before him.
The judge is not binding by the statements of legal principles which were not necessary to the decision of the case that was tried, such as explanation, illustration, or analogy (these are not binding).
It is only binding the rule upon which the decisions actually depended

While the judge follows rules involved in previous decisions, he is frequently in fact building up a new law.
An English judge makes law in applying it, whence his work has obtained the name of “judicial legislation”. It is called (Common Law) (Case law)
The English judge is not binding equally by all previous decisions. The decisions of inferior courts are not absolutely binding upon courts of co-ordinate authority.
The decisions of the Court of Appeal and the Court of Criminal Appeal are generally binding upon the Appellate Courts themselves and upon all courts below. Decisions of the House of Lords are binding on courts in the United Kingdom and upon the House itself.
The English doctrine (common law) applies in many countries such as Australia, New Zealand (not quite strict), Scotland and South Africa (whose legal systems are largely based on Roman Law), and the United States.
Judicial Decisions- French Practice
The judges are not allowed to develop principles of law in their judgements. They are expected to decide simply the case before them.
Their decisions are only binding parties to suit.
This may be contrasted with the English view which regards the decision as a deduction from some principles or general rules which by their application in the case gain judicial authority.
The decisions of the Superior Courts in France do not bind the courts below. Even the Court of Cassation (the highest court of appeal on points of law) does not bind lower courts except when its various chambers or divisions are sitting together.

Judicial Decisions- Iraqi Practice

The Iraqi legal system stands on bases similar in Principles to those of French.
However, the majority of decisions, even those of the highest court in the country, often lack legal precision, well-considered reasoning, and scientific legal technique.

Judicial Decisions- Comparison

It can be compared between the systems of the binding force of judicial precedents and the one based on codes (in which precedents have not binding force) by listing the advantages and disadvantages of the English System:

The advantages of the English System:
1- Certainty. Persons and their legal advisers can have confidence in the future action of the courts.
2- Possibility of Growth: New statements of principles are made to meet new circumstances.
3- Wealth of detail, as compared with even a long code
4- The practical character of case law as it is based on experience rather than logic.
5- Flexibility


Disadvantages of the English System:
Rigidity, because the binding force of a precedent, even if it was wrongly decided.
Danger of illogical distinctions to be free of binding authority
Bulk and complexity of case law make it difficult to learn.