Judgments come from different types of courts
When reading judgments it is important to understand where they come from because this affects how influential the judgment is likely to be. Some judgments only affect the parties in the case, others apply to all citizens within a nation state or within a group of states.
Courts can be categorized in various ways, one such categorization is to distinguish between national courts and international courts. Another is to distinguish between courts dealing with criminal matters and courts dealing with civil (non-criminal) matters.
National courts and international courts
National courts are those courts which operate within a nation state, they have jurisdiction (authority) to deal with matters pertaining to national law and in some cases they will also make decisions about the effect of international law on the case before them. National courts’ judgments are effective within the nation state. The Supreme Court of England and Wales is an example of a national court.
International courts are those courts which operate as part of an international treaty system. They will have jurisdiction to give judgments on matters relating to the particular treaty under which they are constituted. The European Court of Human Rights is an example of an international court. This operates within the context of the European Convention of Human Rights and gives judgments on applications from the Convention member states relating to the civil and political rights protected by that Convention. Its judgments will be addressed to the member state against which an action has been brought. The ruling of the court will apply more widely to those nation states which have accepted the courts jurisdiction under the Convention. In the UK the European Court of Human Rights’ judgments have to be taken into account by national courts when the national courts decide future cases pursuant to the Human Rights Act 1998, but the national courts are not bound to follow them.
Common law and civil law legal systems
There are different types of legal system within which courts operate. At a national level a nation state can operate a common law legal system. In these systems certain decisions of the higher courts form the basis of the law of land, they are authoritative. Thus in a common law legal system both laws passed by government through the democratic process and judgments of the higher courts form binding law. America, Canada and England and Wales are examples of countries which operate a common law legal system.
Also at a national level a nation state can operate a civil law legal system. In these systems the judgments of the courts do not form the basis of binding law. Law is made through the democratic process by parliament alone. France is an example of a country with a civil law legal system.
At an international level the effect of the judgments of the court will be governed by the terms of the treaty establishing the court and the manner in which a national legal system assimilates international law. For example the Court of Justice of the European Union (CJEU), which was established to give rulings on EU law matters, gives judgments which are binding in the member states of the EU. The UK has a national statute incorporating EU law into national law and UK courts must apply judgments of the CJEU. This compares to the European Court of Human Rights (ECHR), as metioned in the previous section, whose judgments are not binding on the nation states that are members of the Convention. A member state can chose to tolerate international condemnation and ignore a judgment of the European Court of Human Rights. Whilst this rarely happens it is theoretically possible. National courts in the UK are required to take judgments of the ECtHR into account by virtue of the Human Rights Act 1998 but they are not bound to follow the ruling provided by the ECtHR.
The effect of judicial pronouncements
It is important to know which type of court a judicial decision comes from and what the effect of that decision is when discussing a case. This is because the more influential the court, the more important its judgments will be and the greater the effect of any given ruling. A judicial pronouncement from the Supreme Court of England and Wales is highly influential and will affect all those within its jurisdiction. A decision of the European Court of Human Rights will have an affect through all the member states of the European Convention on Human Rights.
Adversarial and inquisitorial trials
Another distinction which you will spot as you read cases is that some are lengthier than others. A judgment can be lengthy due to the fact that the decision is given in a common law jurisdiction. Judges are aware that their decisions will be relied on in later cases and so will be careful to set out their reasoning in order to explain the point of law they decide and the reasons for the resolution of the case.
Where to find the judgments
Many courts put electronic versions of their judgments into a central database or onto a court specific database. In the UK judgments can be found on BAILII at //www.bailii.org . To find a case you need to know the date of the judgment or the name of one or more of the parties. You will find some links to court databases in Appendix II.
As well as there being electronic copies of the full judgment available it is also possible to read case summaries or short reports of the cases. Some of these are freely available to members of the public. These provide a brief explanation of the facts, the relevant procedure, the issues of law and the ruling of the court on the point of law.
In the UK free case summaries are available on the ICLR website (the Incorporated Council of Law Reporting for England and Wales). The short summaries are provided for all those cases which create a new point of law and they come out within a day of judgment. If you hear about a case on the news it should be available on the ICLR web page the next day, or certainly within a few days.
Here is the link to the search page on the ICLR site: //cases.iclr.co.uk/Subscr/Search.aspx.
Have a go
You might like to explore some of these databases to see if you can find some judgments. There is a list of law and religion cases in Appendix I, summaries of these can be found on the OJLR site, the link is set out in Appendix I. Once you access the summary you will then find a link to the full judgment at the end of the summary. Alternatively you can go directly to the court web site to see if you can track down the judgment.
Finding your way around a judicial decision
You might find that reading a summary of a case is sufficient for you to understand it. However you might want to discover more about it or you might want to read about a case which has not been summarised (only the most important cases will be written up). If so it will be necessary to go to the full judgment in one of the legal databases such as BAILLI and read through it.
To understand a judicial decision it is necessary to identify the facts, issues, legal procedure and arguments of the parties and to understand the point(s) of law that have been included by the judge(s) in the judgment. Section 2.3..1 will explain how to deconstruct legal argument in this way.
Deconstructing legal argument
Deconstructing a legal argument is rather like doing a jigsaw puzzle. It is necessary to group types of information together (just as before starting to put the pieces together, one might find all the straight edged pieces or pieces of a similar colour when preparing to complete a jigsaw puzzle so it is necessary to find all the facts, all the law and all the reasoning).
Once all the pieces are grouped together it is then possible to put them together to create a full picture of what the judgment is about.
This means identifying:
- the facts – that is who did what to whom,
- the procedural history (the type of action and the court(s) in which the case has been heard – for example, is it a claim by an employee against an employer or a citizen against a government body?),
- the issues (the questions about the law) that the case decides,
- the arguments of the parties (where the judgment includes this),
- the law that the judge applies,
- the application of that law to the facts,
- the final decision in the case,
Deconstructing an argument: organising the pieces
In order to identify the relevant elements of the judgment you might find it useful to use the table set out below. As you read through the judgment use a highlighter to identify the different parts of the judgment and then it would help to create a table (like the one below) to write the relevant information in to the appropriate boxes.
Relevant facts (these are the events which lead up to a claim being made).
Procedural history this includes:
(1) the type of claim: for example it might be a claim for judicial review of administrative action which in the UK would be made in the High Court (Administrative Division) or; an application to the European Court of Human Rights or; an article 267 reference from a national court to the Court of Justice of the European Union
(2) the history of any appeal process that has taken place and a summary of decisions that were made by previous courts lower in the hierarchy.
Relevant law (this is the law that is in dispute (either legislation or case law) in the case. This will be a section of an Act or an Article in a convention). A judge in their judgment might mention several sections or laws and will also mention several cases. In terms of identifying the point of law decided it is necessary to identify that part of the legislation upon which the determination of the case rests.
The issues in the case these are the legal issues (points of law) which the judge has to decide.
|The argument of the parties: an explanation of the arguments presented by either side will usually only be found in judgments within common law jurisdictions which use the adversarial mode of trial. The judge(s) will set out the arguments of the parties often pointing out which is the stronger argument and why.|
|The legal background and the interpretation of the law: this is a broader examination of the law applicable to the case, the judge is likely to set out the legislative context of the case and then provide their reasoning based on that law indicating how they are reaching their decision.|
|The ratio of the case this is the legal decision which the judge comes to. It is the point of law decided by the judge(s) which is a new previously undecided point of law and upon which the resolution of the case depends.|
|The ruling in the case this is the result in the case. Here, for example, it is possible to state either that the claimant won or lost their claim/application or their appeal.|
Once a case has been deconstructed in this way the relevant parts can be used in a blog post.
Reconstructing a legal argument: reading a law report of the case
Once a case has been deconstructed it is the possible to understand the way that this information is reconstructed to form case summaries and law reports. Law reporting is a task carried out by legal professionals writing for publications such as the Weekly Law Reports or the All England Law Reports. These reports are used by barristers and solicitors and others engaged in the legal process. Rather then the legal professionals having to read through the whole case to check whether it is relevant to their own work, they can read the case summaries and decide whether they need to read the whole case. This saves hours of time for legal professionals.
Case summaries and law reports usually follow a format which encompasses:
- The title
This includes the case name, the number allocated to the judgment, the court in which judgment was given in, the judge(s) who heard the case and gave judgment, the date of judgment.
- The catchwords
These are broken down into:
(1) three catchwords setting out the subject area into which the case falls.
(2) Sometimes it is necessary to set out a brief explanation of the legal provision subject to dispute in order to make sense of the facts of the case
(3) A brief set of catchwords explaining the key facts (narrative) in the case.
(4) The issues in the case, that is the legal question(s) which the court considered. The issues listed must match up with the ruling given by the court. The issues are set out in the catchwords and the ruling on the points of law (the issues) is then set out in the body of the case summary or law report
(5) The legislation which was subject to consideration and upon which the resolution of the case depended.
- The narrative and procedural paragraphs.
Some reports or case notes contain a narrative, that is an explanation of the essential relevant facts in the case and an explanation of the procedure. This expands on the brief explanation of the facts in the catchwords.
- The holding
This is an explanation of the new point of law in the case. It needs to succinctly summarise the decision of the court on the meaning of the legislation or the interpretation of existing case law. In common law legal systems this part will be binding law in the case and will apply throughout the country as law of the land.
Here is an example of a report of a case (a headnote) indicating the various sections from 2014 OJLR 3(3):
General Municipal and Boilermakers Union v Henderson
UKEAT/73/14: Employment Appeal Tribunal: Mrs Justice Simler: 13 March 2015
Employment – Unfair dismissal – Discrimination – Employee dismissed for gross misconduct on grounds that he was unmanageable - Employment tribunal ruling that employee had been fairly dismissed but had suffered unlawful discrimination and harassment on grounds of his protected belief in democratic socialism – Employee appealing against dismissal ruling - Employer cross appealing against unlawful discrimination and harassment ruling– Whether tribunal erred in holding that dismissal both fair and unlawfully discriminatory – Whether equality legislation provided less protection for philosophical as opposed to religious beliefs - Whether employee had suffered unlawful discrimination and harassment[- Equality Act 2010, s10
The Employment Appeal Tribunal held that (1) the tribunal had not erred in holding the dismissal both fair and unlawfully discriminatory since the statutory tests for each were different, there was no reason in principle why such a conclusion could not stand. (2) Left wing democratic socialism was a protected characteristic for the purposes of s 10 of the Equality Act 2010 and philosophical as opposed to religious beliefs, were given no less protection under the legislation since philosophical beliefs could be just as important to a persons individuality and daily life as were religious beliefs. (3) There was an insufficient evidential basis for the tribunal’s finding of unlawful discrimination and harassment resulting from the protected belief. Accordingly the employee had been fairly dismissed and there had been no unlawful discrimination or harassment.
Recorded at: //www.bailii.org/uk/cases/UKEAT/2015/0073_14_1303.html;  IRLR 451
Reported at:  IRLR 219
Reported by: Hugh McFaul, Barrister, firstname.lastname@example.org
Deciding upon a topic or case upon which to write a blog entry
You may well already have a judicial decision in mind for comment on the sacred and secular blog. If not you will find a list in Appendix I containing some reports from the Oxford Journal of Law and Religion which you can choose from.
Section 2 has explained the categorisation of courts and the legal systems within which they are based. It has also explained how to deconstruct and reconstruct a judgment of the court. Section 3 will explore questions to consider for making a blog entry and identify ways to carry out research. Section 4 then identifies ways of creating discursive analysis which forms the basis of academic writing and comment.