учебный год 2023 / Precedent-C.Law

fall outside a certain scope? The House of Lords, as I have alreadymentioned, certainlyadhered(or at least claimed to adhere)to such a practicefrom 1898 until I966, the year in which Lord Gardiner stated that the House would in future continue to treat its formerdecisions as 'normallybinding',but would'departfrom a former decision when it appears right to do so'."'?Was this a shift from an absolute exclusionarydoctrine to one with a more limited exclusionaryscope? Or was it, rather,a shift from a strong Burkeanconceptionof precedentin which the thresholdthat had to be achieved by a new perceptionof the balanceof justifying principleswas, if an overrulingwere involved,unobtainablyhigh, to one in which

I966 change. He says of overrulinggenerally that there is a 'permissiblelist' of reasons for overruling a previous decision which includes, but is apparentlynot exhausted by, injustice, iniquitous discrimination,and being out of step with the court'sconceptionof the relevantareaof law.'02Now quite apartfromthe fact that this list is stated at such a generallevel that it seems to capturemost of the reasons that a court would ever be likely to have for overrulinga previousdecision, so that an exclusionaryprohibitionwould be left with very little workto do andone would be led to expect overrulingto occurmuchmorefrequentlythanit does, commonlaw courts do not appearto have even an implicitlylimited list of possible reasons in mind when they consideroverrulingan earliercase. Judges in the House of Lords, for example, emphasize that the decision being reconsidered must be 'clearly wrong',103 and they tend to speak of the necessity for 'a very good reason'"04to overrule rather than for a reason of one or another sort. This is languagewhich arguesfor a strong Burkeanover an exclusionaryinterpretationof overruling,since it emphasizesthe degreeof strengthof the balanceof justifyingreasonsas presently

101Supra n 98.

102PRN, I40; AL, 114.

103Fitzleet Estates Ltd v Cherry[19771 3 All ER 996, Iooo per Viscount Dilhorne: 'If the decision in the Chancery Lane case was wrong, it certainly was not so clearly wrong and productive of injustice as to make it right for the House to depart from it.' See also O'Brien v Robinson1I9731 AC 912, 930 per Lord Diplock; Jones v Secretary of Statefor Social Services, supra n go, 993 per Viscount Dilhorne.

104Knuller Publishing Promotions v DPP 1'9731 AC 435, 455 per Lord Reid: '[Olur change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act.'

246 JUDICIAL OBLIGATION, PRECEDENT AND THE COMMON LAW

perceived,ratherthan categoriesof excludedand non-excludedreasons.'05

When I say that common law courts, and the House of Lords in particular,do not have a limited list of possible reasons in mind when they consideroverrulinga previousdecision, the emphasisshouldbe placedon the word 'limited'.I do not, of course, mean to imply that the House of Lords has not workedout standardsfor the overrulingof its own priordecisions, but only that these standardscan best be understoodin terms of the strong Burkeanconceptionof precedent.AlanPaterson has recentlyattemptedto distil from the relevantcases a numberof criteriawhich he says that the House of Lords has developedto help determinewhen one of its own previous decisions should be overruled.'06There are severalpositive criteria (by which I mean ones that would favour departurefrom a previous decision), these being that the holding in the earliercase is outmoded, unjust,or itself the cause of great uncertainty.Like Raz's list of reasons for overrulingthese criteria are very broadly-stated,almost to the point of being all-encompassing.Even so, there does not seem to be any implication, either on Paterson's part or in the cases, that the categoriesof overrulingareclosed. Moreoverthese positive criteria must be considered in conjunction with what I would regard as the most importantof Paterson'snegative criteria,which is that 'a decision ought not to be overruledmerelybecause the Law Lords considerthat it was wronglydecided"07 (the 'precedent merely wrong' criterion). When one examines the language in which the Law Lords themselves have formulated this criterion, examples of which were given in the previous paragraphand accompanyingfootnotes, I think it becomes clear that it is best understood simply as a statement of the strong

Burkeanconceptionof precedent.'08

As for Paterson's other negative criteria, one involves a current inability to assess the balanceof principles(the 'unforeseeableconsequences'criterion),and so is consistent not only with the strong but with the weak Burkeanconception.The rest are either compatiblewith the strong Burkeanconception(the 'use sparingly'

105 Canadian common law judges have not explicitly addressed the question of when previous decisions should be overruledto the same extent that Englishjudges have, but what they have said seems to be best understood in terms of the strong Burkeanconception of precedent. See, for example, former Chief Justice Bora Laskin's article 'The Role and Function of Appellate Courts: The Supreme Court of Canada',53 Can Bar Rev 469, 478 (I975): 'We are now able |in Canada] to view simply an important element of the judicial process, a necessary consideration which should give pause to any but the most sober conclusion that a previousdecision or line of authorityis wrong and ought to be changed.'

Io6 Supra n 90, 156-57.

107 Ibid, 157.

Io8 Sometimes judges in the House of Lords have spoken of the I966 Practice Statement in terms that are more reminiscent of the weak Burkean conception of precedent than they are of the strong version, let alone the exclusionary model; see e.g. Saif Ali v Sydney Mitchell & Co [1980] AC 198, 217 per Lord Diplock: 'In this House, . . . since the Practice Direction of 1966, all propositions of law laid down in the speeches in previous appeals are persuasive only . . .' Such a characterization does not, however, seem to accord very well with actual English

practice.

criterion), involve statutory interpretation rather than the common law (the

expectations' and 'need for comprehensive reform' criteria). Changes in the balanceof principleswill be discussed in the following section.

The House of Lords' exclusionary approach to overruling its own decisions between 1898 and 1966 is probablybest regarded as an extreme and somewhat aberrant application, to the specific constraint on overruling,of a more general conception of change in the common law that even during that period could be seen to take a strong Burkeanform;"0 it was an approach,moreover, that the IHouseof Lords itself obviously came to think was mistaken."' Even so, since

1966 Englishjudicial practiceseems generallyto be interpretableas requiringthat a reason to overrulebe of a thresholdstrengthwell beyond what would otherwise be decisive on the ordinary balance of reasons. Both the earlier and the later English practicecan thus be contrastedwith the approachof the higherAmerican courts, which have traditionallyappearedto take the view that, at least in certain areas of the law, a reason for overrulingmust meet a thresholdof strengththat is only slightly (if at all) above what would be sufficienton the ordinarybalanceof reasons. At times the Americanpractice seems more consistent with a weak than with a strong Burkeanconceptionof precedent."12Judicialdecisions in the United States are nonetheless generallyregardedas giving rise to law in much the same way as they are in England,and a theory that can explainhow and why this could be so is clearly preferableto one that cannot. The general account of precedent

that I have presented in this paper is capable of providing such an explanation,

109 There is a brief discussion of statutory construction in section 4.6 below.

I Io I am referring here to changes in the common law which fall short of overruling, of the sort discussed in sections 4.1 and 4.2, and also to the overruling of lower court decisions by the House of Lords. That judicial reasoning in the latter sort of situation took a strong Burkean form even during the London Tramways period is evidenced by, for example, Admiralty Commissioners v Valverda [19381 AC 173, I94, where Lord Wright said that the House of Lords would overrule a long-established course of decisions 'only in plain cases where serious inconvenience or injustice would follow from perpetuating an erroneous construction or ruling in law'.

I I ISee Paterson, supra n 90, ch 6.

I12 This has been especially true in the case of constitutional law. See e.g. Smith v Turner(I849) 48 IJS 282, 470 per Taney CJ: 'I ... am quite willing that it be regardedhereafteras the law of this court, that its opinion upon the construction of the Constitution is always open to discussion when it is supposed to have been founded in error, and that its judicial authority should hereafterdepend altogether on the force of the reasoning by which it is supported.'Cf Burnett v Coronado Oil & Gas Co (1932) 285 US 393, 406-i0 per Brandeis J (dissenting); Smith v Allwright (1944) 321 US 649, 665 per Reed J. However, in "'Overruling"Opinions in the Supreme Court', 57 Mich L Rev 15I (1958), Albert Blaustein and Andrew Field have argued that the United States Supreme Court has generally observed certain constraints in overruling its own previous decisions (including, it would seem, those in the constitutional area). These constraints can, I believe, be best understood in terms of a strong Burkean conception of precedent.

250 JUDICIAL OBLIGATION, PRECEDENT AND 'IHE COMMON LAW

in the previoussection, of the criteriawhich he thinks that the House of Lordshas developedfor overrulingits own decisions.18 Anotherof Paterson'scriteriawhich is relevanthere is the following: 'A decision ought not to be overruledif to do so would involve a change that ought to be part of a comprehensivereform of the law' (the 'need for comprehensive reform' criterion).'9 This criterion is also concernedwith a change in the balance of principles,but of a differentsort from that which has just been discussed. Where the justificationfor a previousdecision has become an integral part of an interlocking network of dispute-settling

procedures,the fact that the judicial process of decision-making is necessarily limited in its capacity to make an immediate, sweeping change in the settled law can undoubtedlycount as a reason against overrulingthat decision and thereby introducinginconsistencyinto the largernetwork.We have here an instanceof an institutional consideration, of the same general sort that is invoked by the de minimisprincipleand perhapsalso by the infamousfloodgatesargument,which is being taken into account in the ordinarybalanceof reasons. If (and to the extent that) such considerationsaffectthe generalcapacityof the courtsto settle disputes in a just and consistent manner,then judges should clearly weigh them into the balanceof principlesin decidingparticularcases.

4.5 The natureof the commonlaw

The idealized picture of common law reasoning that has been presented in previous sections is for the most part quite sharplyand preciselydrawn,whereas in practice, of course, the way in which precedents figure in judicial argument tends to be much more impressionisticand elusive, with the whole process often giving rise to much unclarityand controversy.A. W. B. Simpson has said in this regard that the common law is 'more like a muddle than a system', that its characteris 'essentially shadowy', and that it operates 'as if [it] placed particular value upon dissension, obscurity, and the tentative character of judicial utterances'.'20The value of the idealized picture which is associated with the

strong Burkeanconceptionof precedentis that, by seemingaccuratelyto reflectan underlyinglogic in the common law process of reasoning, it demonstratesthat that process need not be interpreted as a muddle in anything other than a superficialsense: if the strong Burkeanaccount is correctthen we are not forced, for example, to regardthe common law as an attempt by the judiciaryto create a system of exclusionaryrulesthat has somehow spectacularlymisfired.

That the common law nonetheless sometimes appears to be a muddle is the consequence of at least three factors. The first is that some degree of indeterminacy in the characterization of judicial reasoning results from the

118 Supra n 90, 156: 'A decision ought not to be overruled if to do so would upset the legitimate expectations of people who have entered into contracts or settlements or otherwise regulated their affairsin relianceon the validity of that decision ...'

119Ibid, I56-57.

120Simpson, supra n 68, 87, 90, 99.

feedback,describedin the previoussection, fromthe strong Burkeanconceptionof precedent to the balance of substantive reasons. The second is that reasoningon the basis of a (weighted) balance of reasons can never be a matter of precise mechanicalcalculation: the determinationof the weight that should properlybe attributed to different reasons for action, and their subsequent aggregationand balancing,is a process that we constantly and necessarilyrely upon but which is

inevitablyimpressionisticin its actualmannerof operation.

The third factor underlyingthe appearanceof muddle, which is related to the second, might be called the element of moraluncertainty.We have availableto us no formaldecision procedurewhich will make clear,in a reliableand certainway, which principles are applicableto which sorts of cases, what weight they carry, and what concrete results they support. The answers we give to these questions depend on a constant search for overall coherence among our various moral judgments at all levels of generality, along the lines suggested by Rawls' conception of reflectiveequilibrium,121 and so in generalcan never be, at any one time, anything other than presumptive and provisional in character. We necessarily operate, in other words, with a moral picture which, because it is at best only an approximationof the truth, is always open to revision. It is this possibility of conflict between what was previouslyand what is presentlythought to be morallycorrectthat underlieswhateverneed theremight be for second-order weighting principles that try to regulate the transition from one judicial approximationof moral truth to another.And it is this same possibility, together with the further layers of inexactitude and uncertaintywhich are introducedby the second-orderprinciplesthemselves-they are, of course, as subjectto revision and qualificationas arefirst-orderprinciples122-that gives rise to the 'dissension, obscurity and . . . tentative character of judicial utterances' to which Simpson draws our attention.

Despite the occasional appearanceof muddle and obscurity the common law can, I have argued, be shown to be ultimately grounded in a consistent and rational process of practical reason which is nonetheless not rule-based in character. The strong Burkean interpretation of common law reasoning thus affords,for example,a coherentexplanationof how it is both that the authorityof

precedents appears to be variable rather than all-or-nothingin nature, and that particularpropositionsof the common law seem in a relatedway to be established

as a partof the law to a greateror lesser degree. It offers a plausibleanswerto the persistent puzzle concerning 'how ['the] process of the

John Rawls, A Theory of Juistice (Cambridge, Mass,

that the search for coherence will eventually result in a point of equilibrium being reached, although it may not be a stable equilibrium.This assumption is not, however, a necessaryone.

122Note, however, that in order to avoid upsetting legitimate expectations concerning the operation of the doctrine of precedent itself, second-orderweighting principlesshould ideallybe reassessed in a way that does not take anyone by surprise. Thus when the House of Lords decided to depart from its practice of not overruling its own previous decisions, it made that decision known not by actuallyoverrulinga case but by issuing a Practice Statement.

of precedent,by the requirementsof justice as they come to be perceivedby the court.

This is perhaps an appropriate place to point out that a strong Burkean interpretation of the doctrine of stare decisis differs not only from Raz's exclusionarymodel of valid, source-basedrules, where the criteriaof validity are set out in a rule of recognition,but also from any account of the common law in which it is treated as a formof custom among thejudiciary(or possiblyamongthe judiciary and bar together).'27Such an account, which in any event could only offer a plausible explanation of the common law as it is found in a jurisdiction

with a highly homogeneous judiciary or legal profession, must suppose that a judge applies a given proposition of law because-and only because-that

proposition is generally accepted among a certain group of persons (judges and perhapsother lawyers).The strong Burkeanconception of precedent,on the other hand, supposes that a judge applies a given propositionof the law because of the reasons that can be given in support of it, and while general acceptance of a practice among a group of persons can sometimes count as a reason for doing the same thing, such as when the practice provides the solution to a coordination problem, it would be most implausibleto think that the doctrine of stare decisis could be given a generaljustificationalongthese lines.128

It is true that the strong Burkean theory looks upon a proposition of the common law as in effect carrying a certain weight simply by reason of having figuredin previousjudicial decisions, and so in that respect appearsto be at least

127 See e.g. Simpson, supra n 68, 9 -99.

128On the view being considered in the text, each individual proposition of the common law (putting aside any problems of individuation that miightarise) would be regardedas an instance of judicial custom. Stare decisis is, on this view, a kind of emergent phenomenon;judgesdo not so much comply with a rule that they should follow precedent as simply decide cases in the generally accepted way. This differs from the position of HIartand Raz, who regardthe doctrine of stare detcisisas part of the rule of recognition; that rule, but not the particularpropositionsof

the common law which it identifies as valid, is regardedas customary in character.One might therefore be tempted to argue, as Gerald Postema has done in 'Coordinationand Convention at

the Foundations of Law', i i J of Legal Stud r65 (I982), that the rule of recognition itself can be 'reconstructed' so as to show it to be a solution to a coordination problem. The coordination

problem he envisages is the i(lentificationand interpretationof valid laws, and while it is true that the Hartian rule of recognition sets out criteria for this purpose, it also imposes a duty upon officials to apply those laws. (See Raz, AL 92-93.) No doubt some conventional solutions to coordination problems can give rise to duties, but the only such duty which Postema can argtuablydemonstrate to exist is the duty to identify and interpret valid laws correctly. He in effect simply builds the anterior duty to apply valid laws into the defining conditions of the coordination problem, and so does not ever provide an answer to the question of why there is such a duty in the first place. This question is, however, just another way of asking why the rule of recognition possesses normative force, which is the very question Postema purports to be answering. John Finnis attempts a more ambitious application of coordination theory to the foundations of law: see supra n 8, ch 9. The resulting theory is effectively criticized by Leslie Green in 'Law, Coordinationand the Common Good', 3 OxfordJ of Legal Stud 299 (1983).