Law of Precedent of England
We consider certain features of the law of precedent of England, which occupies the central place in the legal family of the Common law. First, there exists a rule according to which a court in considering a case elucidates whether or not an analogous case was the subject of consideration previously and, in the event of a positive answer, is guided by the existing decision. In other words, a decision rendered is an obligatory norm for all subsequent analogous cases. This general rule requires detailisation since the degree of bindingness of precedents depends upon the place of the court considering the particular case in the judicial hierarchy and the court whose decision may become a precedent.
Judicial precedent is the principal source of English law. At present there are about 800,000 judicial precedents in England and each year about 20,000 new ones are added, which take up more than 300 volumes of internal and European law.
Under the present organisation of the judicial system the situation is as follows. Decisions of the highest instance - the House of Lords - are binding upon all other courts.
The Court of Appeal, which consists of two divisions (civil and criminal), is obliged to comply with precedents of the House of Lords and their own, and its decisions are binding upon all inferior courts.
The High Court (all divisions thereof) is bound by precedents of both superior instances and its decisions are binding upon all inferior instances and also, although not strictly binding, influence the consideration of cases in its divisions.
Crown and magistrate courts are obliged to follow the precedents of all superior instances, and their own decisions do not create precedents. Decisions of the Crown Court, created in 1971 for the consideration of especially grave crimes, are not considered to be precedents.
The rule of precedent traditionally was considered in England as severe. Unlike the United States, a judicial instance could not reject a precedent previously created; it could be changed only by a superior instance or by an act of parliament. Even the highest judicial instance, the House of Lords, until the mid-1960s considered itself to be bound by its own prior decisions, which ultimately created a dead-end situation. In 1966 the House of Lords rejected that principle.
The notion that a rule of precedent fetters a judge also is deceptive. Since the complete coincidence of circumstances of various cases is not frequent, a judge decides by his discretion whether to deem the circumstances to be similar or not, and the application of a particular precedential norm depends upon this. A judge may find analogy of circumstances when at first glance they do not coincide. Finally, he may in general not find any similarity of circumstances. In this event if the question is not regulated by norms of statutory law, the judge himself creates a legal norm, becomes so to speak the legislator.
What has been said by no means exhausts the possibility of judicial discretion within the framework of precedential law. The traditional structure of a judicial decision facilitates such discretion. It, as a rule, is elaborate and includes an analysis of the evidence, opinion of the judge with regard to disputed facts, reasons for which the court has been guided when rendering the decision, and, finally, the legal conclusions. Only that part of a judicial decision is a precedent which from the time of John Austin has been called the "ratio decidendi" (literally, the grounds of the decision) - the proposition of law on which the decision is based. Only the ratio decidendi. Only the ratio decidendi is binding; the rest of the judicial decision is called "obiter dictum" (said in passing) and can not be regarded as something binding. However, the question concerning the methods of distinguishing the ratio decidendi and obiter dictum is controversial and the resolution thereof depends to a considerable extent on the discretion of the judge.