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Legislation and Judicial Precedent Explained for ACCA

Updated 11 October 2026 · Fact-checked

Legislation is law made by a legislature. Judicial precedent means lower courts follow the ratio decidendi of earlier decisions of higher courts. Courts interpret statutes using the literal, golden and mischief rules. Delegated legislation is law made by a body, such as a minister, under powers given by an Act.

Understand Legislation and Judicial Precedent

Law comes from two main places in a common law system: legislatures and courts. A legislature passes primary legislation, often called an Act or statute. Courts then decide disputes and, in doing so, create case law.

Judicial precedent (stare decisis, meaning 'stand by what is decided') says that courts should follow earlier decisions on similar facts. Each judgment has two parts. The ratio decidendi is the legal reasoning needed to reach the decision. It is the part that binds. Obiter dicta are other comments made in passing, such as hypothetical examples. They do not bind, but they can persuade.

Whether a precedent binds depends on court rank. Generally, a court is bound by decisions of courts above it in the same hierarchy. A binding precedent must be followed. A persuasive precedent, such as obiter comments, decisions of lower or foreign courts, may be considered but need not be followed. A court can avoid a binding case by distinguishing it (the facts differ in a material way). A higher court can overrule an earlier case. An appeal court can reverse the decision of the court below in the same case. Rules on whether a top court can depart from its own past decisions vary between countries, so answer on the basis given in the question.

Statutes are written in words, and words can be unclear. Judges use rules of statutory interpretation. The literal rule gives words their plain, ordinary meaning, even if the result seems harsh. The golden rule starts literally but modifies the meaning where the literal result would be absurd. The mischief rule asks what gap or problem (the 'mischief') the Act was passed to fix, and chooses the meaning that remedies it. Courts may also use a purposive approach, which looks at the overall purpose of the law.

Delegated legislation is law made by a person or body other than the legislature, under authority given in an Act (the enabling or parent Act). Examples are statutory instruments, regulations, and local authority by-laws. It is used because it saves parliamentary time, allows technical expertise, and can be made or changed quickly. The criticisms are less democratic scrutiny and risk of excess power. Courts can strike it down if it goes beyond the powers given (ultra vires).

Key formulas to remember

Binding part of a case: Ratio decidendi = binding; obiter dicta = persuasive only; The ratio is the reasoning necessary for the decision. Other remarks do not bind.
Literal rule: Plain ordinary meaning of the words, even if the result is harsh; Gives certainty. Used first by most courts.
Golden rule: Literal meaning, unless absurd; then modify minimally; Narrow use: to avoid absurdity or repugnance.
Mischief rule: Identify the old law, the defect (mischief), the remedy, then interpret to cure the defect; Looks at the purpose behind the Act.
Handling precedent: Follow, distinguish, overrule, reverse; Distinguish = different material facts. Overrule = higher court rejects an earlier case in a different case. Reverse = appeal court changes the result in the same case.
Control of delegated legislation: Made within enabling Act = valid; outside its powers = ultra vires (void); Courts can review it. Procedure or scope can be challenged.

How to solve Legislation and Judicial Precedent questions

Use this method for any question on how laws are made or applied. Read the verb in the question first: define, identify, explain or apply.

1Decide whether the issue concerns legislation, case law, interpretation or delegated legislation.
2For precedent, identify the court deciding the case and the court that decided the earlier case. Check the hierarchy.
3Separate ratio from obiter. Ask: was this reasoning necessary to reach the decision?
4If the earlier case is binding but unhelpful, check whether its material facts differ. If so, it can be distinguished.
5For interpretation, read the disputed word. Apply each rule in turn and state the outcome each would produce.
6For delegated legislation, name the enabling Act, the power given, and whether the rule stays within it.
7Give a clear conclusion in one sentence, linked to the facts.

Quickest way: Three-question scan for objective questions

When to use it: Use in Section A when you have about one to two minutes per question.

Spot the keyword: 'binds' or 'ratio' means precedent; 'plain meaning' means literal; 'absurd' means golden; 'gap or defect in the old law' means mischief; 'enabling Act' means delegated.
Eliminate options that say obiter dicta is binding or that a lower court can overrule a higher court.
Pick the option that matches the rule's exact test, then move on.

Common mistakes in Legislation and Judicial Precedent

Saying obiter dicta is binding.
Students think everything a judge says is law.
Fix: Only the ratio decidendi binds. Obiter can persuade only.
Confusing overruling with distinguishing.
Both are ways a court avoids an earlier case.
Fix: Distinguishing keeps the old case valid but says the facts differ. Overruling says the old case was wrongly decided and is done by a higher court in a later case.
Mixing up the golden and mischief rules.
Both can depart from the plain meaning.
Fix: Golden rule: absurdity of the wording. Mischief rule: the problem the Act was meant to cure.
Treating a lower court's decision as binding on a higher court.
Students ignore the hierarchy.
Fix: Precedent flows downward. Check the rank of both courts.
Saying delegated legislation is not subject to any control.
It is made outside the legislature, so it seems unchecked.
Fix: State that courts can declare it ultra vires, and that the legislature sets the limits in the enabling Act.
Calling the literal rule 'the fairest result' rule.
Students assume courts always aim for fairness.
Fix: The literal rule follows the words, even if the result is harsh. Fairness is not its test.

Worked examples

Example 1

A statute says it is an offence to 'drive a vehicle' in a park. A person pushes a bicycle through the park without riding it. The prosecution says a bicycle is a vehicle. Explain how a court would reach a decision under the literal, golden and mischief rules. Assume the Act's purpose was to keep motor traffic out of the park.

Show the solution

Literal rule: give 'drive a vehicle' its plain meaning. Pushing a bicycle is not driving, so no offence.
Golden rule: the plain meaning is not absurd here, so there is no reason to modify it. Again, no offence.
Mischief rule: the defect the Act cured was dangerous motor traffic. A person pushing a bicycle does not cause that mischief, so no offence.
All three approaches lead to the same result.

Answer: Under all three rules the person is not guilty, because pushing a bicycle is not driving a vehicle and does not cause the mischief the Act targeted.

Example 2

Court A is a lower court. It is hearing a case where a higher court, Court B, previously decided a similar case. In Court B's judgment, the judge gave the reasoning needed for the decision and also said, in passing, what the result would have been on different facts. Explain how Court A should treat each part.

Show the solution

Check hierarchy: Court B ranks above Court A, so its decisions can bind Court A.
Identify the ratio: the reasoning needed to decide Court B's case. Court A must follow it if the material facts are similar.
Identify the obiter: the comment on different facts was not needed for the decision. It does not bind Court A but can be treated as persuasive.
Consider distinguishing: if Court A's facts differ materially from Court B's, Court A need not follow the ratio.

Answer: Court A must follow the ratio decidendi if the material facts are similar, unless it can distinguish the case. The obiter comment is only persuasive.

Exam tips

Learn the hierarchy rule in one line: courts follow courts above them. Most precedent questions turn on this.
In Section B scenarios, quote the key word from the statute before you apply a rule of interpretation.
Objective questions often swap definitions. Check that you match the term to the right test, such as ratio to 'necessary reasoning'.
For delegated legislation, remember both reasons for use (speed, expertise) and the main criticism (limited scrutiny).
Do not assume a country's rules. Answer using the general common law position unless the question says otherwise.

Practice questions from Business, political and legal systems

Legislation and Judicial Precedent in other exams

The same ground in other exams, if you are preparing for more than one or want another angle on it.

Legislation and Judicial Precedent: frequently asked questions

What is the difference between ratio decidendi and obiter dicta?

The ratio decidendi is the legal reasoning necessary to reach the decision, and it forms the binding precedent. Obiter dicta are other remarks made in passing. They do not bind but may persuade a later court.

Which rule of statutory interpretation should I use first?

The literal rule is generally the starting point because it follows the plain words. If that gives an absurd result, a court may use the golden rule. The mischief rule looks to the problem the Act was meant to solve.

What is delegated legislation and why is it used?

It is law made by a person or body under powers given by an Act of the legislature. It is used to save legislative time, to use expert knowledge and to allow quick changes. It can be challenged if it goes beyond the powers given.

Can a court ignore a binding precedent?

A court cannot ignore it, but it can distinguish it if the material facts differ. A higher court can also overrule it in a later case. Precedent that does not bind can only persuade.