Introduction
We noted in Chapter 2 that the English legal system is a common law system, which means that a great deal of the law has been created, and some of it continues to be developed, by the courts when deciding individual cases.
Indeed, there are still some significant areas of law – such as the tort of negligence – which remain relatively untouched by statute and which are, therefore, largely dependent on the courts for their continuing development on a case-by-case basis.Nevertheless, despite the continuing importance of the common law, statutes now create a far greater volume of law than judicial decisions do. It follows, therefore, that you must rapidly acquire the ability to read both cases and statutes. Quite apart from anything else, statutes have to be interpreted by the courts. This point divides into two sub-points. First, the principles of statutory interpretation are themselves part of the common law rather than having been enacted by Parliament. Secondly, under the doctrine of the separation of powers (which is explained at pp. 42–45) it falls to the courts to decide the definitive meanings of individual statutes, and these decisions may then bind other courts in later cases arising from the same statutes.
Of course, you may be tempted to rely on the few lines in a textbook which purport to tell you what a case decides or what a statute means; and there is no doubt that textbooks can be very useful as a means of gaining a bird’s-eye view of a topic. However, when it comes to more detailed study, whether by way of preparation for tutorials or essays, or when assembling a body of notes from which you will be able to revise for examinations, there is no effective substitute for reading the cases and statutes themselves.
In this chapter we are going to do two things. First, we shall take a substantial extract from the report of the Court of Appeal decision in Henthorn v Fraser [1892] 2 Ch 27 (which is a leading case in the law of contract) and explain how you can get the maximum value from the time and energy you will invest in reading it.
More particularly, there are two aspects to this part of the chapter. Our first aim is to help you find your way around a typical law report in terms of identifying its elements and understanding its structure. Our second aim is to illustrate how the ratio decidendi of a judgment can be identified and how the weight of obiter dicta can be assessed. Of course – and recalling the distinction between the descriptive and prescriptive meanings of the word ratio, which is explained at p. 110 – all we can do at this stage is to identify the descriptive ratio, since it is only the judges in later cases in which this one has been cited who can identify the prescriptive ratio.Secondly, we shall take the Dealing in Cultural Objects (Offences) Act 2003, which is a very short, modern statute, in order to illustrate both the basic structure of a simple statute and some points of statutory interpretation.
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