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Mahesh Sharma K1702234

Tutorial 2 Semester 1
BA4201

Nature of English Law

Preparatory Materials:

Your notes from Lecture 2

Lucy Jones, Introduction to Business Law, (4th edition) (Oxford: OUP,
2015) Chapter 1

Part 1:

In this seminar you need to answer the following questions individually:

Please have a detailed written answer for question 4 and 5.

1. What is meant by the term binding precedent?

Precedent is the name used where a decision of an earlier court case is used as
authority for deciding a later case with similar facts. A binding precedent means
that in deciding a case an English Judge does not just look at earlier decisions of
judges in similar cases for guidance, but is actually bound to apply the law decided
by those earlier cases., if the earlier cases were heard in a court of superior status
and have involved similar facts in that area of the law.

2. What is meant by the term common law?

Common law is generally used to describe law developed by judges through

decisions in courts as opposed to laws created by Parliament. Common Law made
by judges have the advantage of being based on real life scenarios. Prior to the
development of a fully functional legislature, the Common Law was essential. It is
developed through being tested in practical situations, allowing it to be flexible and
allows judges to apply it in a fitting manner. However it is harder to decipher if there
are different decisions that appear to conflict.

3. Do judges actually make law? If they do, is that a good thing?

Judges make law when deciding both criminal and civil cases in two main ways one
being Interpreting Statues. Sometimes the meaning of a statute might be unclear
thus a judge is called in to interpret it. This interpretation is arguably equivalent to
law-making. Another way in which judges make law is Developing the common
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Mahesh Sharma K1702234

law. This can occur in early contract law, and law of tort where the courts have
developed the law through decisions of cases. It can be argued that it is a good
thing, as the doctrine of binding precedent is a part of English law which means that
judges must apply the law as set out in relevant decisions of previous superior courts
and sometimes courts of the same status. This is different from other EU countries as
judges are typically guided rather than bound by previous cases. If judges are able
to create laws it will allow them to be flexible with cases, and to be able to tackle
the case from multiple viewpoints.

4. Explain the difference between:

a. Public and Private Law:

Public law is the relationship between individuals and the state, concerning the
decisions by, and control of government bodies. Public law is built up upon three
forms, Constitutional law, Administrative law and criminal law. An example of
constitutional law is elections and voting. An example of administrative law is judicial
reviews. An example of criminal law is where a person makes certain types of
behaviour against the law and gives the state power to prosecute persons who
disobey the law.

Private law on the other hand is the relationship between rights/duties and
individuals, and is built upon forms such as Tort, Family, Contract and Property law(s).

b. Civil and Criminal Law:

Civil law is

5. In English courts there is an adversarial system. Do you think that this is a

good system?