учебный год 2023 / Precedent-C.Law
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JUDICIAL OBLIGATION, PRECEDENT AND TIlE COMMON LAW |
In section 4 of this paper I will argue that the common law doctrine of stare decisis is best interpretedas a strong Burkeanconceptionof precedentratherthan as an instance of the exclusionary approach.This will show that common law precedentsshould not be regardedas giving rise to rules which are exclusionarily binding on judges (one aspect of the second positivist thesis),67and at the same time will point the way towards a morecomplexpictureofjudicialobligationthan is drawnby the first positivist thesis. Althoughit will not be possible to complete that picture in this paper, I at least hope to be able to show that it can only be properlyfilledin by utilizing elements of the adjudicativeapproachto legal theory. Unlike the positivist view of law which underlies the sources thesis, the adjudicativeapproachdoes not take the function of law which is theoretically determinativein this context to be the authoritative guidance of conduct. One conclusiontowards which the argumentsof section 4 will accordinglypoint is that the sources thesis is not applicable,in any theoreticallysignificantsense, to the commonlaw.
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LEGAL THEORY |
AND THE COMMON LAW |
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4. Rules,principlesandjustification |
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Bentham maintained that the common |
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which in reality amounted to little more than the exercise of arbitrarypower.7' This scepticism was the consequenceof his belief that the commonlaw could not in any plausibleway be characterizedas a system of authoritatively-enactedrules, which, in the positivist tradition,he took to be the only tenable model for law of any sort. I will argue that while Bentham was correctto deny that the common law consists of rules--at least where rules are understoodin Raz's exclusionary sense-common law precedentsare nonethelessmeaningfullybindingonjudges in a way which still makes it sensible to assert that the common law exists as a
67I will not be able to deal in this paper with another aspect of the second thesis, which is that precedents give rise to rules which are exclusionarilybinding for citizens as well as for courts. I would want to argue,however, that this aspect of the second claim is false as well.
68Jeremy Bentham, 'Papers Relative to Codificationand Public Instruction',in John Bowring,(ed), The Works of Jeremy Bentham (Edinburgh, I843), 483. Bentham's claim that the common law did not exist is discussed by A. W. B. Simpson in 'The Common Law and Legal Theory', in Simpson, (ed), OxfordEssays in Jurisprudence,second series (Oxford, I973) 77, 88-89.
69Bentham, ibid, 485.
70Ibid, 460.
71Ibid, 460: 'Of unwrittenli.e. commonl law (for such is the term in use), but much more properly
of uncomposed and unenacted law (for of writing there is, beyond comparison,more belonging to this spurious than to the genuine sort) ... the perpetualfruits... are ..., in the breast and hands of the judge, power everywhere arbitrary,with the semblanceof a set of rules to serve as a screen to it.' 'Genuine' law is 'written or statute law' (ibid, 460), which is 'the only real sort of law' (ibid,
484).
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rationaland non-arbitraryregime of practicalreason.There is a coherentmode of practical reason underlying the doctrine of stare decisis, but it consists of a weighted balanceof reasons and not, despite Raz's contentionto the contrary,of a system of exclusionaryrules.
In order to preserve a measure of neutralityin terminologyI will use the term 'proposition'of the common law rather than the expression 'rule'.That liability for unintentionalinjuryto the personor propertyof anotheris to be determinedin accordancewith the negligence standardof fault is, for example,a propositionof the law of torts. The most obvious characteristicof such propositions, and one that has frequently been remarked upon, is that they are not expressed in a canonicalform of language,or, as Pollockput it, they 'have neverbeen committed to any authenticform of words'.72This featureof the commonlaw was in fact one
of the reasons for Bentham'sbelief that it did not constitute a system of genuine rules,73and the connection which he perceived between a rule and a definitive linguistic formulationof the rule is perhaps plausible in the following way. The very nature of a rule is, as Raz correctlyobserves,both to exclude a certainrange of first-orderreasons from considerationin deciding what to do, and at the same time to serve as a first-order reason itself for performing (or refraining from performing) some specified action. A rule can do neither of these things very efficiently, however, unless the nature of the appropriate action, and the circumstancesunder which it becomes mandatory,are specifiedwith some degree of exactitude, and this is more likely to be the case where a fixed formof words is employed. I of course do not mean to suggest that there cannot be rules which have not been given a canonical formulation, and the difference between rules which have been so formulatedand those which have not is in any event a matter
of degree; every rule, no matter how preciselyworded,will alwayshave a measure of open texture. But there is perhaps something to be said for the claim that the central case of a rule is one that has been 'committed to [an] authentic form of
words', especially since conventions of construction can then be brought to bear which will have the effect of further restricting the initial range of potential
indeterminacy.
If common law propositionswere simply exclusionaryrules that were defective because they had not received a definitivelinguistic formulation,then there is no reason to suppose that such a defect could not and would not have been remedied
by the judiciary. In fact, however, a reform of this sort would be pointless. A
propositionof the commonlaw is not generallyregardedas importantin itself, but only as a kind of convenient but informal statement of the outcome that is
perceived as flowing from a particular set of justifying principles in a particular type of case. A judge who is considering a precedent is generally more interested in the principles which were taken to justify the decision reached, and, in particular, in whether they apply to the facts of the present case, than he is in any
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.urisprudence (6th ed, London, 1929), |
73 Supra n 71.
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baldly-stated proposition or 'rule' that the earlier decision |
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The pervasiveness |
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reasons in their own right' :75 |
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Thus norms [i.e. exclusionaryrules] have a relative independencefrom the reasons which justify them. In orderto know that the norm is valid we must know that there are reasons which justify it. But we need not know what these reasons are in orderto applythe norm correctlyto the majorityof cases.... It prevailsin virtue of being an exclusionaryreason.
This relative independence of rules from their justifying reasons is an important element in Raz's defence of positivism, since the basis of the argument for the sources thesis is that legal standards must be identifiable without recourse to
justificatory argument, and, in particular, without recourse to moral argument. This does not, however, appear to be true of propositions of the common law (at least so far as judges are concerned), since it is a direct appeal to the principles underlying those propositions which ultimately seems to lie at the foundations of common law reasoning. This would seem to be the point, for example, of the common law maxim 'cessante ratione legis, cessat ipsa lex'.76
It might seem that there is a fairly straightforward reply which the positivist could make to this line of argument. The reply would grant that common law judges do look to the reasoning behind previous decisions and not simply to propositions which summarize the upshot of that reasoning. But, the reply would run, this state of affairs is not inconsistent with the model of exclusionary reasoning, since the rationale of a previous decision must itself be regarded as exclusionarily binding on a common law judge. Trhe judicial task which is associated with the doctrine of stare decisis is to determine which principles were
74Perhaps an even more common formulation to the same effect is that there is 'no distinction in principle' between the way that the two sets of facts should be regardedby the court: see e.g. Bannister v Bannister 1I94812 All ER 133, 136.
75PRN, 79.
76This is not to deny Lord Simon of Glaisdale's conclusion, in Miliangos v George Frtnk (Textiles) Ltd, supra n 34, 476, that the maxim 'is not a licence to courts to change the law ...'. In section 4.2 I offer an analysis of the constraints on judicialfreedom.
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taken to be relevant in previous similar cases, assess what relative weights were thought to attach to each, and then ascertain whether and how that received understandingof the normative situation appliesto the case in hand.Accordingto this view, the entire ratio decidendiof a common law precedentis to be regarded as constituting an exclusionaryreason forjudicial action in any subsequentcases in which the facts fall within the ratio's scope. Principles are important in the commonlaw, but it is only the previousjudicialunderstandingof which principles apply when that actually binds judges; in cases that are covered by a precedent there is no room for a fresh reassessment.The reply would no doubt concede that this variety of exclusionaryreasoningdiffers from the centralcase of a rule which
is expressed independentlyof its justification,especially since a large measureof judgment is called for in determining what the ratio decidendi of a judicial decision is. But the point that would be insisted upon is that this interpretationof common law reasoning is exclusionary,and so is capableof being accommodated within the positivist model.
This reply will not do as it stands, since it is clearlynot true that the processof common law reasoning categorically rules out fresh reassessments of which principlesapply in which types of case, and of what specificresults they point to; not only do judges frequentlyrefine,qualifyor revise the reasoningthat was relied upon in earlier cases, they sometimes reject the rationaleof a previous decision entirely.It is conceivable,however, that a more sophisticatedversionof the simple model of exclusionaryreasoning that was sketched in the last paragraphcould be developed which would be able to take account of these facts. Raz's attempt in chapter Io of The Authority of Law to reconcilethe doctrineof precedentwith the revisabilityof the commonlaw suggests the form that such a theory might take.77 Raz distinguishes between two categories of judicial revision in the commonlaw, namely those where the change involves overrulinga previousdecision and those where it does not, and for purposes of exposition it will be convenient to follow him in this regard.The latter category will be consideredin the remainderof this section, but the formerwill not be considereduntil section 4.3.
Raz suggests that revisions of the common law which do not amount to instances of overrulingmust be explainedby referenceto the judicial practiceof distinguishing.78Sometimes judges distinguish a previous case by means of a straightforwarddeterminationthat the reasoning which was given in supportof the earlierresult does not apply to the facts of the case at hand. If the practiceof distinguishingwere limited to such determinationsthen it would obviously not be
capableof remedyingthe inadequaciesof the simple 'exclusionarilybindingratio'
77Note that Raz a :cepts the distinction which I earlierreiected between a common law rule and its rationale, and that he frames his proposedreconciliation in these terms. This is not importantin
the present context, however, since almost everything that Raz says in his discussion of precedent can be translated into a terminology that does not employ this distinction: see e.g.
n 79, iflra.
78 AL, 184-85, i89, 195.
238 JUDICIAL OBLIGATION, PRECEDENT AND THE COMMON LAW
model discussed above. Raz describes a strongerform of distinguishing,however, which permits a judge to add a furtherrestrictingconditionto a commonlaw rule, but only if the newly-stipulatedcondition was present in the reportedfacts of the earliercase; the new version of the rule must still supportthe old result.79Having characterized the 'special revisability' of judge-made law in this way, Raz concludes that such law has 'a different status from legislated law'.80It can, he
says, be said to be 'metaphorically'less binding than statutorylaw, but, even so, '[s]trictly speakingjudge-made law is binding and valid,just as much as enacted law;'81 common law rules are, according to Raz, 'binding in their essential
rationale.'82 |
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characterizedas giving rise to exclusionaryrules.)
The problemwith this attempt to reconcile the revisabilityof the common law with an exclusionaryinterpretationof the doctrineof precedentis that it depends on too narrow a characterizationof the ways in which, even short of overruling, the commonlaw can be revised. Judgesdo not limit themselves,in reassessingthe
justificatoryprincipleswhich were employed in a previouscase, to restrictingthe reachof those principles;very commonlya court will recognizethat the true scope of the relevant principles requires that their range of potential application be extended beyond what had been contemplated by the court which made the originaldecision. Raz explains such cases as instances of analogicalreasoning,in which an entirely new rule is created through reliance on the rationale that justified an old one: '. . . if a certainreason is good enough to justify one rule then it is equallygood to justify anotherwhich similarlyfollows fromit'.83
The frst point to be noted about this explanationwhich Raz offersfor common law cases in which the range of previously-acceptedprinciplesis extended is that it utilizes the distinction between a rule of the common law and the rationalefor
the rule which I argued earlier to be unimportant.It also depends (as does the entire positivist model of the common law) on a much sharper theoretical distinction between making and applying law than any which is drawn by the judges themselves.84But more significant than either of these points is the fact that this explanationdoes not even seem to give Raz a way to avoid sayingthat on at least some occasions analogical reasoning leads judges 'to extend [an old] rule... by dropping a condition [of applicability] . . .' (as opposed simply to leading them in all such situations merely 'to create anotherrule').85Thus, even
79Ibid, I85-86. Essentially the same idea could be captured, but without reference to rules, by saying that judges are permitted to reformulate the principles which were used to justify a previous decision if the effect is to restrict those principles' range of applicability while still supportingthe result of the previousdecision itself.
80Ibid, 195.
81Ibid.
82Ibid, 189.
83Ibid, 204.
84Raz acknowledgesthis in AL, 206-9.
85Ibid, 204.
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within the terms of Raz's own model, the strong form of distinguishingis not the only means by which a common law rule can be modified;so long as the resultsof previous cases are still upheld, a judge may, if he thinks that the extant version of a rulecan be improvedupon, either add new conditions of applicabilityor dropold ones. It is thereforeno longerclearhow, on Raz's view, a commonlaw rulecan be said to possess an exclusionarilybinding 'essential rationale'.This conclusion is reinforced by the observation that the process of reassessing the reasoning in previous cases sometimes takes a more radical form than mere restriction or
extension, amounting to what is, in effect, the articulationof a new justificatory basis for a whole line of priordecisions. This kind of modificationof the common law, which is not discussed by Raz, is particularlycharacteristicof landmark cases: Donoghuev Stevenson3and MacPhersonv Buick Motor Co4are, perhaps, the most celebratedexamples in moderntimes of such generalrestatementsof the law, but they areby no means the only ones.
4.2 The strongBurkean interpretationofprecedent
Let me try to summarize what has emerged from the discussion in section 4.I. Propositionsof the common law must be characterizedas informalstatements of the upshot of a particularbalance of justifying principles,as these principlesare thought to apply to a particularkind of case. This is evidenced by the fact that such propositions lack a canonical formulation,so that their content and scope must be primarily determined by direct reference to the underlying principles rather than by reliance upon techniques resembling those of statutory construction. Common law propositions therefore cannot be regarded as being instances of Raz's centralcase of exclusionaryrules, which arerules that possess a relativelylargemeasureof independencefrom theirjustifying reasons. But neither can such propositionsbe construedas exclusionaryrules in some secondarysense, accordingto which the formulationof underlyingprinciplesthat was arrivedat in the relevant precedents is itself exclusionarily binding. This is because the
possibility of reconsidering and modifying the underlying balance of justifying principles,far from being excluded, seems to be left open in some way in almost every case. Moreover the extent to which the common law can thus be restated and revised is, even without any previous cases being overruled,sufficientlygreat that it does not appear to be capable of being accommodated within a more
sophisticated version of this 'exclusionarily binding ratio' approach. It is nonetheless obvious that the doctrine of precedentplaces someconstraintson the revisabilityof the common law, but the natureof these constraintsseems to elude
the exclusionarymodelcompletely.
There is an alternative interpretationof the doctrine of stare decisis which, while it is capableof accountingfor the extensive revisabilityof the common law, makes clear at the same time that the process of revision is not an unconstrained
86 [I932] AC 562.
87 (i916) I NE o05o.
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JUDICIAL OBLIGATION, PRECEDENT |
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one. |
This interpretation is based upon the |
strong Burkean conception of |
precedent,and it is accompaniedby an accountof judicialobligationwhich, being drawn from the adjudicativeapproachto legal theory, differs markedlyfrom the positivist account.The most basic obligation of the common law judge is not, on this view, to evaluate the conduct of individualsin accordancewith exclusionary rules which were created, as the positivist interpretationof stare decisis would have it, by ajudicialprocedurethat closely resemblesstatutoryenactment.Instead the judge is taken to be obligated to decide the cases that come beforehim on the basis of whatever principlesof justice and other relevantdimensions of morality properlyapplyin the resolutionof disputes of that kind, where the natureof these principlesis very much as describedby Dworkinin 'The Model of Rules I'.88
On this view the judge is nonethelessnot free, as he would be in the system of absolutediscretiondescribedby Raz, for example, simplyto ignorewhat has been done in the past and to decide the case presently before him in the way that he now happens to think is correct. If the present case falls within the scope of the reasoningthat was enunciatedin an earliersimilarcase, then he can only rely on a modified(or completelydifferent)formulationof principlesif the collectiveweight of the latter appearsto him to be, in the mannerof the strongBurkeanconception, above a thresholdof strengthwhich is higherthan what would be requiredon the ordinarybalance of reasons. (The factors which determinethis thresholdwill be considered shortly.)Otherwise he is bound to make the decision that is indicated by the precedent,which can thereforebe loosely thought of as having itself been assigned a certain weight (i.e. beyond whatever intrinsic weight is perceived as attachingto the reasoningwhich supportedthe result).The intuitive idea is that a legal system can change its mind, so to speak, about which principlesapply to a given type of case, about what relative weight each possesses, and about what concreteresults they collectivelypoint to, but it cannot do so too hastily.
Propositions which summarizethe upshot of the train of judicial reasoningin one or more precedentscan no doubt be spokenof in a loose andderivativeway as being binding upon judges. Within the bounds of this locution, however, judge-made law can be seen to be not merely metaphoricallyless binding than enactedlaw, as Raz suggests, but really less binding.The reasonfor this has to do with the nature of the strong Burkeanconception of precedent:previousjudicial reliance upon the set of principlesfor which a given propositionstands does not exclude action upon a subsequentlyreconsideredbalanceof reasons,but is simply deemed,in effect, to confera somewhat greaterweight upon those principlesthan they would otherwise have received when reconsiderationoccurs. The process of
common law adjudication,the centralfunctionof which is takenon this view to be the resolutionof individualdisputes in accordancewith the appropriateprinciples
of morality, thus gives rise, as a kind of by-product,to a body of dispute-settling standardswhich possess a certaindegree of stability. But the propositionswhich
88 Sec n 30, supra. As I there explained, in this paper I am using 'principle'in the generic sense of 'The Model of Rules I' and not in the substantive, rights-oriented sense of 'lard Cases'.
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set out these standards have a very different status from statutory enactments. Besides lacking a canonicalformulationand being, in the sensejust explained,less binding, even the degree to which they do bind need not be fixed; as we shall see in a moment, the thresholdwhich is establishedby the strongBurkeanconception of precedent can vary among propositions, and for any given proposition it can changewith context andover time.
It would thereforebe very misleadingto speakof a propositionof the common law as having been broughtinto full-blownexistence, througha processanalogous to the enactment of legislation, simply because the principles underlyingit had served as the basis of decision in one or more cases. Such propositionsare,rather, established as a part of the law to a greateror lesser degree,in the sense that they can vary in the extent to which they resist reformulation,qualification,revision and replacement. This is a convenient but, again, a somewhat loose way of
speaking, since it is really the underlyingset of justifying principles,and not the proposition itself, which constitutes the locus of resistance to change; the extent to which a particularpropositioncan be said to be establishedas a partof the law is determinedby the extra threshold weight that a proposednew formulationof the balanceof justifying principlesmust be thought to attain beforeit can replace the formulationof principlesfor which the propositionpresentlystands.89(For the sake of convenience I will sometimes refer to the propositionitself as carryinga certain relative weight.) That liability for unintentional injury to the person or physical propertyof anotheris to be determinedin accordancewith the negligence standardis, in this sense, a well-establishedpropositionof the law of torts. That recovery may be had for negligently-caused economic loss is, by contrast, a propositionthat is less well established.
The relative weight that is to be assigned to any given propositionof law will generallybe a complexfunction of many differentfactors,includingthe position in the judicial hierarchyof the courts that have relied upon the proposition in the past, the number of times that it has been so relied upon, and the age90of the relevant precedents. Where the threshold is set will also vary with the extent to which a particulararea of the law should be regardedas appropriatelyinducing
89 The idea of a principle (or proposition) of the common law being settled or established to a greater or lesser degree has been given expression in a number of differentmetaphors in judicial opinions. See, for example, Hedley Byrne & Co Ltd v Heller & Partners Ltd [i 984] AC 465, 519 per Lord Devlin: 'I cannot feel, therefore, that there is any principle enunciated in Le Lievre v Gould which is now so deeply embedded in the law that your Lordships ought not to disturb it.'
90o 'hc effect of this factor is complex and possibly confused: see the discussion in Alan Paterson,
7'he Law Lords (London, 1982), i6i. Gellerally speaking, however, a proposition of law that has been enunciated in a very recent case seems to carry less weight than one enunciated in a case
which has stood for a longer time: see e.g. Jones v Secretary of State for Social Services 1972] AC 944, 993 per Viscount Dilhorne. On the other hand, a proposition that was stated in a very
old precedent may, if it has not been reaffirmedfor some time, carry less weight than it would have if it had been associated with a more recent case.
242 JUDICIAL OBLIGATION, PRECEDENT AND THE COMMON LAW
reliance; being able to predict and rely upon what a court is likely to decide is undoubtedlymore importantin contractlaw than in negligencelaw, for example.9' It is also possible that a certain weight may sometimes be accordedto a given propositionby reasonof its having been recognizedand reliedupon by the higher courts of certain other jurisdictions. The nature of the factors which have just been canvassed should not, however, lead one to conclude that the weight of a propositionis a determinatepropertywhich is fixed, at any given moment in time, independentlyof the context in which the proposition is being considered: its weight is also relativeto the position in the judicialhierarchyof whatevercourt is contemplatingmodifying it, as well as to the extent of the modificationwhich is proposed. A suggested reformulation of the balance of justifying principles underlyinga given propositioncan rangefrom,on the one hand,a relativelyminor reassessment(which might take the form, for example,of a slight variationin the relative weight attributedto each relevant principle)to, on the other, a proposal which entails that the principlesproperlyapplicablein the resolutionof a given kind of dispute are radically different from those which have been applied heretofore.92A very minor change will generally involve little perceptible alterationin the thresholdof strengthabove the ordinarybalanceof reasons,and it
will probablybe capableof implementationby most of the courts in the system; a major restatement of the law, on the other hand, along the lines of Donoghuev Stevenson, will involve a much higher threshold, and implementingthe change will in generalbe the prerogativeof the highercourtsof appeal.
The relative weight that is to be assigned on any given occasionto a particular proposition of the common law-and hence its degree of bindingness on that occasion-thus varies with the precise configurationof the differentfactorsjust enumerated (and no doubt others as well); contrary to Raz's claim, such propositionsare not binding or not-binding,valid or invalid, in the all-or-nothing fashion that is usually associated with statute law.93Strictly speaking,of course, they are not even variably binding except in a derivative sense, since the basic process of practicalreason which underliesthe common law is to be found at the more fundamentallevel of a weighted balance of principles;propositionsof the common law are, to repeat,essentiallydevices of convenience,undoubtedlyuseful
9I The fact of justified reliance, as opposed to an assessment of the relative importance of predictability,is a considerationwhich can directly affect the balanceof substantive reasons. See the discussion in section 4.4 below.
92 Note that a proposed reformulationcould entail that one or mloreprevious cases should have been decided differently.This will be discussed in section 4.3, where overrulingis considered.
93 I thus disagree as well with the following claim made by Finnis, supra n 8, 312, at least so far as it applies to the common law: 'The black-and-white quality of legal obligation (like the all-or-nothingquality of legal validity) is part of the data, which an explanationof law must take into account and explain (and not explain away).' The idea that propositions of the common law are valid in an all-or-nothing sense is, for both positivism and for the traditional natural law theory defended by Finnis, not part of the data but the consequence of an interpretationof the data.
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but ultimately dispensable.Moreover, as has alreadybeen pointed out, judges, at least, frequently do dispense with them; it is often remarkedthat common law judges do not generallywrite theirjudgments in a way that shows direct reliance upon, or permits the readyextractionof, proposition-likestatementsof the law (or rule-likestatements, as it is usuallyput).94Casting the law into the formof concise propositions is, to a certain extent at least, a task that has been undertakenby treatise-writersratherthan by judges.
In connection with the observation that propositions of the common law are
only derivatively binding, it is also worth noting that judges characteristically speak of being bound by cases ratherthan by propositions(or by 'rules');this is consistent with the idea that second-orderweighting principlesultimately apply not to propositions as such but to sets of first-orderprinciples,where the actual degreeof weighting is determinedby what has been done in previouscases. Cases are usually said, moreover, to possess not validity but authority,95which is a variablerather than an all-or-nothingconcept, and one which can be fitted quite easily into the account of common law reasoning being presented here: the authority of a case is a function of, first, the perceived strength of the actual arguments that were given in support of the result reached, and, second, of the various characteristicsof the case-its age, the hierarchicalstatus of the deciding court, etc-that might affect the thresholdof weight that wouldhave to be met by a proposed revised set of justifying principles in a subsequent similar case. It is thus quite conceivablethat a well-reasonedlower court decision can have greater authoritythan a poorly-reasoneddecision by a highercourt, andthe historyof the commonlaw in fact offersmany such examples.
4.3 Overruling
In the discussion in the precedingsection of the way in which propositionsof the common law can be said to be established to a greater or lesser degree, I was assuming that all potential revisions of the law could only take place within the limits of a more fundamentalconstraintthat is imposedby previouscases, namely the limitation on overruling.Overrulingis simply the necessary implicationof a sufficiently drastic restatement of the law that an earlier case would now be decided differently.It is to a considerationof this constraint,which is the one that
judges probablymost often have in mind when they speak of being bound by an earlier decision, that I now wish to turn. The question that will be of particular interest is whether the common law practices relating to overruling can be accommodatedwithin the theoretical interpretationof the doctrine of precedent that I have been developingup to this point.
94 See e.g. A. W. B. Simpson, 'The Ratio Decidendi of a Case and the Doctrine of Binding Precedent', in A. G. Guest, (ed), Oxford Essays in Jurisprudence (Oxford, 196I) 148, i66; Dworkin, TRS, I I .
95 See e.g. Simpson, supra n 68, 86. Weinrib also discusses this point in 'The Natural Law of Torts', supra n 7.