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Published online by Cambridge University Press: 16 January 2009
In a recent article in the Cambridge Law Journal, Laurence Goldstein argues that four problems of legal theory which are supposed to present elements of paradox are capable of a reasonably simple solution. I am interested here in only one of the problems discussed by Goldstein: that concerning the status of the rules of precedent. I agree with Goldstein that this problem has a reasonably simple solution: but I disagree with the solution he proposes. (Broadly this is that pronouncements on precedent do not establish rules of law.) I propose in this short article to offer what I believe to be a correct solution to this problem. The solution proposed is one which has already been suggested by A. W. B. Simpson in 1961 in “The Ratio Decidendi of a Case and the Doctrine of Binding Precedent” but there is, I believe, a defect in Simpson's formulation of the argument for it, which has impeded its general acceptance. In any event, as there is clearly still controversy about the issue, it seems worthwhile restating this solution with fresh arguments. I will first discuss the problem, then its proposed solution, then Simpson's discussion of the topic, and finally some further questions which are suggested by the proposed solution.
1 “Four Alleged Paradoxes in Legal Reasoning” [1979] C.L.J. 373.
2 Oxjord Essays in Jurisprudence, ed. Guest, (1961), p. 148.Google Scholar
3 Thus, the following present views which involve abandoning proposition 1: Williams, Glanville in Salmond on Jurisprudence (11th ed. 1957), pp. 187–188;Google ScholarHicks, , “The Liar Paradox in Legal Reasoning” [1971] C.L.J. 275, 290Google Scholar; Lord, Denning in Davis v. Johnson [1978] 1 All E.R. 841, 855Google Scholar; Goldstein, , supra, n. 1 at p. 387.Google Scholar Goldstein does not, however, agree with the others that pronouncements on precedent are mere statements of practice. He takes the view that they are logically incoherent utterances. Rickett, C. E. F. in “Precedent in the Court, of Appeal” (1980) M.L.R. 136, 144Google Scholar, puts explicitly the view that changes in the rules of precedent are revolutionary changes (a rejection of proposition 3), though he suggests that in practice such changes will normally occur very slowly. The views expressed by Stone-de Montpensier, Roy L. in “Logic and Law: The Precedence of Precedents” (1967) 51 Minnesota L.R. 655, perhaps involve an attempt to reject proposition 2 (see also [1968] C.L.J. 35).Google Scholar
4 e.g. Glanville Williams, supra, n. 3.
5 [1898] A.C. 375, 379.
6 [1944] K.B. 718, 729.
7 [1950] 2 K.B. 368, 371.
8 The view that rules of precedent are rules of practice was expressed by Cross in the first edition of Precedent in English Law (1961), pp. 249–250.Google ScholarRickett, C. E. F. in “Precedent in the Court of Appeal” (1980) M.L.R. 136 refers to rules of precedent as “rules of practice,” because they are part of the rule of recognition of the system. For reasons given in the text, I do not think they are part of the rule of recognition, but in any event (again for reasons given in the text) I would not consider this a good reason for treating them as anything, other than full rules of law.Google Scholar
9 My belief that there are such rules is based on the view that judges are sometimes bound, though not by the rules of precedent, to extend the ratio of a case beyond its expressed terms. This is argued more fully in a paper “On case law Reasoning” which I hope to publish shortly.
10 For discussion of these cases see: Jones v. Secretary of State [1972] A.C. 944; Knuller Ltd. v. D.P.P. [1972] A.C. 435; Cassell & Co. Ltd. v. Broome [1972] A.C. 1027, per Lord Reid at 1086E.Google Scholar
11 Supra, n. 2.
12 Supra, n. 5.
13 (1859-1861) 9 H.L.C. 274.
14 (1852) 3 H.L.C. 341.Google Scholar It seems to me that in Bright v. Hutton the House did in fact refuse to follow its earlier decision in Hutton v. Upfill (1850) 2 H.L.C. 674; though it did not do so in so many words. In Upfill's case it had been held that a member of a provisional committee of a company who had accepted shares allotted to him was liable as a contributory on a winding up of the company, because these facts established a contract to be liable for expenses of the management committee in promoting the company. In Bright v. Hutton it was held on facts admitted to be indistinguishable, that there was no contract, and hence no liability as a contributory. The lords who spoke, treated Upfill's case as a decision on fact, and hence as not binding. Strictly, the finding in Upfill's case was not about what the facts were, or about the existence of a rule (the rule that if there was a contract authorising expenses there was liability as a contributory was accepted in both cases), but about whether the agreed facts could be classified in a certain way so as to come within an agreed rule. (Such conceptual questions are often misleadingly spoken of as “mixed questions of law and fact.”) If findings on questions of this sort are not binding, so that the only findings which bind courts are those about the existence of rules of law, then there are a tremendous range of precedents normally assumed to be binding which are not.Google Scholar
15 At pp. 388 and 392 respectively.
16 (1860) 8 H.L.C. 369, 391.
17 At. p. 459.
18 Supra, n. 14.
19 (1844) 10 Q. & F. 534.
20 On this see Allen, C. K., Law in the Making, 7th ed. (1964), pp. 210et seq.Google Scholar, Goodhart, “Precedent in English and Continental Law” (1934) 50 L.Q.R. 40, “Case Law: a Short Replication” ibid. 196; Holdsworth, “Case Law” (1934) 50 L.Q.R. 180, “Precedents in the Eighteenth Century” (1935) 51 L.Q.R. 440; Allen, C. K., “Case Law: an Unwarrantable Intervention” (1935) 51 L.Q.R. 333Google Scholar; Lord Wright, “Precedents” [1943] C.L.J. 1. A clear sense of the early 19th century position can be derived from Ram, The Science of Legal Judgment (1834), Chaps. 14 and 18. That rules of precedent may sometimes require a lower court to adhere to something which is not the law so far as citizens are concerned (if we take it the law for citizens is the law which should be applied by the highest court) is clearly recognised by Stephens J. in Viro v. The Queen, 18 A.L.R. 257 at 289–335. I do not accept what the learned judge there seems to suggest, that there must be a “sanction” (of possible reversal) to support rules of precedent. (Cf. Jenkins, , Correspondence (1981) 1 Legal Studies 340.) It is inconsistent with the judge's own view that a final court may bind itself to follow its own decisions.Google ScholarIbid., p. 290.
21 E.g., in Miliangos v. George Frank (Textiles) Ltd. [1976] A.C. 443.Google Scholar
22 (1880) 13 Ch.D. 639.
23 (1884) 9 P.D. 96.
24 (1886) 17 Q.B.D. 259.
25 (1884) 13 Q.B.D. 794.
26 (1888) 20 Q.B.D. 569, 571.
27 See, e.g., Lord Greene in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718, 727.Google Scholar
28 Ibid., at p. 572.
29 [1895] 1 Ch. 51.
30 [1895] 2 Q.B.D. 577.
31 Wynne-Finch v. Chaytor [1903] 2 Ch. 475.Google Scholar
32 [1914] 3 K.B. 458.
33 [1915] 21 Com.Cas. 320.
34 Newsholme Bros. V. Road Transport & General Insurance Co. [1929] 2 K.B. 356, 384.Google Scholar
35 In re Shoesmith [1938] 2 K.B. 637, 644.Google Scholar
36 [1944] K.B. 718.
37 On this point see the following passages in Davis v. Johnson [1979] A.C. 264, and further cases cited therein: Lord Denning M.R. at pp. 281et seq.; Goff L.J. pp. 293G-295F; Cumming-Bruce L.J. at pp. 311G; Viscount Dilhorne at p. 336F; Lord Salmon at p. 344A-FGoogle Scholar; also Attorney-General v. Reynolds [1980] A.C. 637, 659F.Google Scholar See also Cross “The House of Lords and the Rules of Precedent.” In Law. Morality and Society: Essays in Honour of H. L. A. Hart, ed. Hacker, and Raz, (1977), pp. 145, 151–153.Google Scholar
38 “The Ratio Decidendi of a Case and the Doctrine of Binding Precedent,” supra, n. 2.
39 At p. 152. I have changed the name of the appellant in the quotation from London Street Tramways Ltd. to London Tramways Ltd., taking account of the errata at the front of (1898) A.C.Google Scholar
40 Supra, n. 1 at p. 389.
41 If the court did have this power the basic rule would have to be one which justified a conclusion that the court can determine what the rules of precedent are until it itself deprives itself of this power. The reasons for this are set out clearly in relation to a similar problem by Alf Ross in “On Self-Reference and a Puzzle in Constitution Law” (1969) 78 Mind 1.
42 See supra, n. 37.