What Is the English Legal System & Theory of Law? A Level Guide
If you’ve just started A Level Law, the English Legal System is the first major topic you’ll encounter — and the most important one to get right. Everything else in the course sits on top of it. Criminal law, contract law, tort — none of it makes full sense until you understand how English law works, where it comes from, and how judges are bound by past decisions.
This guide covers the key concepts: judicial precedent, stare decisis, ratio decidendi, obiter dicta, distinguishing, overruling, and the debate around judicial activism. These come up constantly in A Level Law exams, so the earlier you’re clear on them, the better.
What Is the English Legal System?
The English legal system is kind of the legal framework for England and Wales, like the courts, the sources of law, the legal people, and those particular rules that decide how law gets made and then applied. It is not just one thing, more or less, it’s all connected, even if it feels separate at first. It’s one of the oldest common law systems in the world and the system Cambridge A Level Law is centered on.
At AS Level you’ll cover three main areas: the principles and sources of law, the machinery of justice (the court structure), and legal personnel — judges, barristers, solicitors, and others. The part students tend to find most challenging — and the part that carries the most exam weight in this topic — is judicial precedent and the theory of law behind it.
Judicial Precedent and Stare Decisis
Judicial precedent is the principle that courts must follow decisions made by higher courts in similar cases. It means English law isn’t made by Parliament alone — judges shape it too, through every decision they deliver. This is what’s meant by judge-made law.
The doctrine behind all of this is stare decisis — Latin for “stand by what has been decided. “it’s pretty much what keeps the legal system consistent, you know. Without that, every judge could just decide cases off their own idea of fairness, and then the law gets unpredictable, sort of fast. Stare decisis prevents that by requiring courts to respect and follow established decisions.
Binding Precedent vs Persuasive Precedent
Not every precedent works the same way, and this is a distinction examiners test directly.
Binding precedent must be followed. It comes from a higher court in the hierarchy. A Supreme Court decision binds the Court of Appeal, the High Court, and every court below — no exceptions. The lower court has to apply the same legal principle even if the judge personally disagrees with it.
Persuasive precedent doesn’t have to be followed but can influence a decision. This includes judgments from courts at the same level, decisions from other common law countries like Australia or Canada, and — crucially — obiter dicta from any court.
Ratio Decidendi and Obiter Dicta
Every judgment has two parts that A Level Law students must be able to distinguish.
Ratio decidendi — “the reason for the decision” — is the core legal principle the judge applies to reach their conclusion. This is the binding element. When a lower court is bound by a precedent, it’s the ratio decidendi it has to follow. Not the whole judgment. Just the legal reasoning that actually decided the case.
Obiter dicta — “things said by the way” — are comments the judge makes that aren’t necessary to the decision. A hypothetical scenario, a reflection on a related point, a suggestion about how the law might apply differently. Obiter dicta are never binding, but they can carry real persuasive weight — especially from senior judges in the Supreme Court or Court of Appeal.
Distinguishing, Overruling, and Reversing
The doctrine of precedent isn’t a complete straitjacket. Courts have three main tools to work around past decisions.
Distinguishing cases is the most common. A court, kind of argues that the facts in the case right now are materially different from the earlier one so the ratio decidendi just, doesn’t apply in the way you’d expect. The precedent is still there, but it doesn’t really bind this particular case though, not directly.
Overruling goes further than that. A higher court says the earlier decision was simply wrong, and it replaces it with a new precedent, like it wipes the slate clean.
The UK Supreme Court can overrule its own past decisions using the 1966 Practice Statement, though it does this sparingly.
Reversing is different from overruling and students often confuse the two. Reversing happens in the same case — an appeal court overturns the decision of the court below. The legal principle might stay the same; it’s the outcome for the specific parties that changes.
Advantages and Disadvantages of Judicial Precedent
Essay questions on this topic require a balanced evaluation — not just a list of positives.
Advantages: the system creates consistency and fairness, since like cases are treated alike. It gives lawyers and their clients certainty — they can predict outcomes based on past decisions. It’s also efficient, saving courts from rethinking familiar legal questions from scratch.
Disadvantages: it can be rigid, locking courts into outdated decisions that no longer reflect society’s values. The sheer volume of case law makes the system complex and hard to navigate. And because suitable cases don’t always reach court, the law can lag behind social change for years.
Judicial Activism and Judge-Made Law
Judicial activism describes judges who go beyond passively applying the law and actively shape its development — through creative statutory interpretation, bold use of obiter dicta, or willingness to depart from precedent when the law demands it.
Supporters argue that judicial activism keeps the law fair and responsive, especially when Parliament hasn’t legislated. Critics argue that unelected judges making law raises serious democratic concerns. This tension is one of the richest debates in the theory of law — and a favorite topic for A Level essay questions.
Final Word
Get the English Legal System right early and everything else in A Level Law becomes clearer. These aren’t just theoretical concepts — they’re the tools examiners expect you to apply and evaluate throughout the course.
At A Level Law Teacher, Sir Owais Mirchawala has spent over 15 years helping students across the UK, Pakistan, India, and beyond master these foundations. His AS Level Law course covers the English Legal System in full — with recorded lectures, past paper practice, and written feedback on your answers. If your Cambridge exams are coming up, it’s worth exploring.