Case law - Analogy, rules and precedent (binding and persuasive). Ascertaining the ratio decidendi. Following, over-ruling and distinguishing.
1. Specimen/2 "In this country it was long considered that judges were not makers of law but merely its discoverers and expounders. The theory was that every case was governed by a relevant rule of law, existing somewhere and discoverable somehow, provided sufficient learning and intellectual rigour were brought to bear . . . . But the true, even if limited, nature of judicial law-making has been more widely acknowledged of recent years" (Jones v Secretary of State for Social Services 1972, per Lord Simon) Discuss.
2. 1981/4 "All that I am against is too rigid applications - a rigidity which insists that a bad precedent must be followed. I would treat it as you would a path through a wood. You must follow it, certainly so as to reach your end. But you must not let the path become too overgrown. You must cut out the dead wood and trim off the side branches, else you will find yourself lost in thickets and brambles. My plea is simply to keep the path to justice clear of obstructions which would impede it." (Lord Denning, The Discipline of Law). Comment upon this view of judicial precedent. 3. 1982/7 It has been argued that the individual judge must be left with enough discretion to decide in the light of the circumstances everything that cannot be justly settled by general rule. Discuss this view of the function of the judge in relation to judicial precedent. 4. 1983/5
1. By reference to the concept of judicial precedent explain how case law is made. 15 2. Give an account of any decided case which in your view has made an important contribution to English Law and explain how it has done so. 10=25 5. 1984/6 "In any state there must be some power ultimately capable of altering and declaring the law." Discuss in relation to the United...