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Judges and the law
How do judges make law? This unit will examine how the common law system works, the...
How do judges make law? This unit will examine how the common law system works, the differences between ‘civil code’ and ‘common law’ systems, and the advantages and disadvantages of the common law system. The role of the judiciary in the law-making process is explored by examining the origins of common law, the system of precedent and the rules of statutory interpretation.
After studying this unit you should be able to:
- understand what is meant by a common law system;
- demonstrate a good knowledge and understanding of what is meant by the common law and how its rules are made and changed;
- demonstrate an understanding of how the common law has developed;
- describe what is meant by a system of binding precedent;
- explain the court hierarchy;
- discuss how a precedent can be altered or avoided;
- identify the ratio decidendi and obiter dictum of a court case;
- explain the role of the judiciary in statutory interpretation
- discuss the rules of statutory interpretation;
- understand the difference between a common law- and civil law-based justice system;
- read and analyse legal materials (cases, statutes and academic commentary).
- Current section: Introduction
- Learning outcomes
- 1 The role of the courts and the judiciary
- 2 Part A Historical development of the common law
- Part B Precedent
- 3.1 Introduction
- 3.2 The hierarchy of the courts
- 3.3 Structure of the court system in England and Wales
- 3.4 Binding precedent
- 3.5 Summary of Part B
- 4 Part C Accurate law reporting
- 4.1 Introduction
- 4.2 Tyes of reports
- 4.2.1 Year Books (1275–1535)
- 4.2.2 Private reports (1535–1865)
- 4.2.3 Modern reports (1865 to present)
- 4.2.4 The Law Reports
- 4.2.5 Weekly Law Reports (citation WLR)
- 4.2.6 All England Law Reports (citation All ER)
- 4.2.7 Legal periodicals and newspapers
- 4.2.8 Specialist reports
- 4.2.9 European Community reports
- 4.2.10 DVD-ROMs and internet facilities
- 4.2.11 Neutral citation
- 4.3 Summary of accurate law reporting
- 4.4 Summary of Part C
- 5 Part D The need for statutory interpretation
- 6 Part E The rules of statutory interpretation
- 7 Part F Common law, equity and statute law
- 8 Part G Common law and civil law systems
- 9 Part H Consolidation
- 10 Review of the learning outcomes
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Judges and the law
This unit considers the way that judges make law, how the common law system works and the advantages and disadvantages of a system like the British one that relies heavily on such rules and rule making. The unit will set out the basic differences between ‘civil code’ systems and ‘common law’ systems, and consider the relationship between judge-made law and statutory law.
This free course is an adapted extract relevant to The Open University course W100 Rules, rights and justice: an introduction to law, which is no longer taught by the University. If you want to study formally with us, you may wish to explore other courses we offer in this.
Copyright & revisions
Originally published: Wednesday, 15th June 2011
- Creative-Commons: The Open University is proud to release this free course under a Creative Commons licence. However, any third-party materials featured within it are used with permission and are not ours to give away. These materials are not subject to the Creative Commons licence. See terms and conditions. Full details can be found in the Acknowledgements section.
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