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Course of Study:
(LAWD10016) Introduction to Law

Title:
English legal system in context (English legal reasoning: the use of case law)

Name of Author:
Fiona Cownie, Anthony Bradney, Mandy Burton & Cownie, Fiona & Bradney, Anthony
& Burton, Mandy

Name of Publisher:
Oxford University Press
 5
English legal reasoning:
the use of case law

Introduction
In Chapters 1 to 4 we have begun to get some understanding of what 'the English legal
ystem' might be by looking at some of its institutions. We have noted that we have rela-
tively little information about many facets of these institutions and that this inhibits our
ability to understand how they work. However, even if we were satisfied with the quality of
information that we had obtained about the institutions, it is clear from Chapter 1 that this
would be insufficient to obtain a complete understanding of'the English legal system'. The
integrated theory we outlined in Chapter 1 points to the need to understand the full com-
plexity of legal processes. One thing we do not yet know is how disputes are settled within
these institutions. We have some knowledge of the jurisdiction of the institutions. We know
a little about the personnel who staff. As yet we know nothing about how disputes are proc-
essed. How does a dispute become a legal event? How does a dispute become a case? How
does a dispute become a judgment? 1
Analysing the processing of disputes can be done in two ways. First, we can look at the
way in which conflict between two or more individuals is gradually translated into a court
case and, from there, into the judgment of a court. Looking at this involves both looking at
the legal rules which help effect this and also looking at the impact of the different inputs
from individuals, both from within and outside the legal system. It involves asking both
what is happening and in what way is that which is happening different from other ways of
solving disputes? This we will do in Chapters 10 to 17. A second way oflooking at the proc-
ess by which disputes become decisions is to concentrate on what actually happens in court
and, in that, to focus on what is specifically legal; that is, the process of legal argument. In
looking at this, we can hope both to understand how legal decisions are generated and also
what makes 'the English legal system' unique.

The legal system as legal reasoning

It has been said that:

a legal ystem is a 'closed logical system' in which correct legal deci ion can be deduced
by logical means from predetermined legal rules without reference to social aim , policies,
moral standards ... 2

1
In saying this, we hould remain aware of the possibility that dispute that become legal event are no dif-
ferent, in any important way, from disputes that a.re settled by other means.
2
H. L.A. Hart, 'Po itivism and the Separation of Law and Morals' (1958) 7 1 Harvard Law Review 593 at
p. 602.
 82 CHAPTER 5
ENGLISH LEGAL REASONING : CASE LAW 83

If this i true, the essence of a legal system can be aid to lie in its form of reasonin
What i being said is that when judge give judgment in English courts, and when Ia:~
yer argue before these courts, they do so in a distinctive manner. The form of speech
they adopt, the ideas th ey find persuasive, and the manner in which they construct their
argument are all particular to the Engli h legal system and are also general throughout
that y tern . Englis h legal reasoning takes the arne form whether the area oflaw is con-
tract law, family law, or the law of taxation. English legal reasoning remains the same
whatever the change to the content of the rules. Thus, Englis h legal reasoning can be
said to be one of the ways in which Engli h legal rules acquire their systematic character
in application.
To say English legal rea oning is particular to the legal system is not to say that it has no
connection with other form of legal reasoning. There are many similarities between the
approach taken by English lawyers and that taken by other lawyers within the common law
legal world (broadly tho e countries which were once part of the British Empire). However,
each jurisdiction has its own unique features. Equally, there may be similarities between
common law legal reasoning and civil law or other legal forms of reasoning. 3 Nor does the
above ~uo.tat~on argue that legal reasoning is unconnected with other forms of reasoning.4
The pomt Is Simply that each system has its own internal coherence and that that coherence
give it a particular identity.
. In this chapter and Chapter 6, we will look at analyses which have sought to identify the
Important features of English legal reasoning. At the same time, we will look at critiques
of these accounts. These critiques both suggest deficiencies in traditional accounts and
also sug~e_st that Engl~sh legal reasoning may neither be unique nor even specifically legal.
These cntJques may either be used to upplement traditional theories or to offer a radical
challenge. Thu , for example, Kelman has argued that traditional accounts of common-law
reasoning function as ways of protecting a hierarchical relationship between academics
and student or well-established and fledgling lawyers. 'Only by creating a technical fog
to obscure the true concerns [of law], concerns about which they have nothing much to
say that would make them stand out, have the masters been able to make the initiates bow
scrape, and believe themselves to be deeply unfit and inferior.'s ' not of men. 7 It has been argued that a system of precedent can be of assistance in allowing
The idea of precedent
In looking at a new set of facts, a new dispute, English legal reasoning always demands
that one first ask how previous judges would have decided the legal problem that one is
now facing. One looks back to old judgments, and the legal rules, concepts, and princi-
ples found therein, and decides how they would have been applied in these new circum-
stances. Judges do not decide de novo. Equally, judges do not simply approach a new case
on the basis of broad principles. They do not begin each case and decide what they think
the law is or should be. Rather they take the law as being something that is given in what
has gone before. Of course the old law was about a different situation. No two sets of facts
ever recur precisely. There is always some element of change even if that element involves
some relatively slight matter. In looking backwards, therefore, one looks not for past cir-
cumstances where the present case is repeated but, rather, past circumstances where one
might draw a comparison between them and the present and one might say, that is what
was decided in the past about that set of circumstances, therefore, in this very similar set
of facts, the same thing would have been decided. One draws an analogy between the
past and the present.
The advantages and disadvantages of precedent
Law is not just a mechanism for settling disputes. It is also, more importantly, a way of
avoiding disputes; of telling people how they might order their lives so that disputes can
be avoided. If people are to do this, they must know what the law is; they must know how
judges will settle a dispute should a matter come to court. Law must be predictable. Lawyers
must be able to tell their clients how to run their affairs. Judges must be able to announce
what the law will be to the world at large. One must be able to know what the law is before
going to court, otherwise it would be expensive both financially and socially. Moreover, the
law must be removed from the judges. Judges must be there, not to decide cases on their
own initiative, but to apply a known set of rules to the facts before them. The job of the
judge must be stripped of any subjective or personal element. Law must be a system of rules
all these things to be done.
A past Lord Chancellor, Lord MacKay, has described the advantages of precedent in this
way:

Traditionally, it has been said th t th k E 1· a scheme of precedent is clearly capable of providing important benefits. It assists litigants
· a e ey to ng 1sh legal reasoning lies in its use of to assess the nature and scope of legal obligations and, to the extent that it enables them to
precedent:
predict the likely outcome of disputes, it restricts the scope of litigation. By allowing the vast
Our common law system consists . th I . bulk of disputes to be settled in the shadow of the law, a system of precedent prevents the
th fl . In e app ymg to new combinations of circumstances
o e ru1es o aw wh1ch we derive fro 1 1 · · 1 . . . legal apparatus from becoming clogged by a myriad of single instances. It reflects a basic
. . · m ega pnnc1p es and JUdicial precedents; ... and we
are not at liberty to reJect them, and to abandon all analogy to them .6 principle of the administration of justice that like cases should be treated alike and therefore
generates a range of expectations from different participants in the legal process. Rule of

3 Indeed, it would be trange to find that there .

oning. Legal rea oning wh th 't b were no connections between different form s of legal rea·
• e er 1 e common Jaw 0 ~ 1
era! proposition about behav· t . ul r, or examp e, Islamic, is still an attempt to apply gen· 7 It has long been argued that an important feature of 'the English legal ystem' i the fact 'no ~ani. pun-
tour o partie ar ets of f t f
Reasoning (1994) Maklu, Antwerp. ac s. ee urther G. Samuel, The Foundations of Legal
ished or can be lawfully made to suffer in body or goods except for a disti nct breach of law e tabli hed tn the
• Again, it would be strange if it were. Legal reasoni ordinary legal manner before the ordinary Courts of the land' (A. V. Dicey, Introduction to the Law of the
who are untrained in it On the el t' h. b ng must be understood, at least to some extent, by those
· r a tons tp etween leg 1 · Constitution (5th edn, 1897) Macmillan, London, p. 179). Not everyone accept that liberal states have, in fact,
G. amuel, 'Can Legal Reasoning b D . d , a rea onmg and other forms of reasoning, see further
6 reached thi po ition. Thus, Kairys has as erted that '[o]urs i a government by people, not law. Th~e robed
s M. Kelman, 'Trashing' (1984) ;6 Semyr tide ? (2009) 29 Legal Studies 181.
tan.or Law Revtew 293 t 325 K • d· people sitti ng behind ornate over ized desks are not controlled or bound by law; regardle of t~~lf honest
th e context of American univer itie b 1 ld b a P· · elmans comments are couche tn
6 u cou e equally a r d . th . self-apprai al and their pretensions, they are in the busine of politics' (D. Kairy (ed.), The Poltllcs of Law
Per Mr Justice Peake in M' h PP te Ln e Enghsh co ntext.
tre ouse v Renne/ [1833 J I Cl and Fin 527 at p. 546. (rev. edn, 1990) Pantheon, New York, p. 8).
 84 CHAPTER 5
ENGLISH LEGAL REASONING . CASE LAW 85

law ba ed on a y tern of precedent are therefore likely to exhibit haracteri tic of certainty,
on i tency and uniformity.8
Precedent, on thi argument, provide certainty, con i te ncy, and thu a m ea ure of clar-
ity. People know not only what the law i but al o what it will be. In principle, the ordinary
per on , the ordinary lawyer, the humble t judge, i in ju t a good a position a the judge in
the highe t urt to look back and ee what the law wa and, thu , ee what the law will be.
However, in providing thi con i tency, precedent al o carrie with it a di advantage.
Precedent carrie with it the un likely me age that tho e that ca me before us knew a
mu h a we do now; that tho e in the past are good judge of what we hould do in the
pre ent. One pa t Lord hancellor, in a book on political ph ilo ophy, caricatured the law-
yer' idea of precedent thu :
Failing all el e, their Ia t re ort will be: 'Thi wa good enough for our ancestors, and who are
we to que lion their wi dom? ' Then they'll ettle back in their chair , wi th an air of having
aid the Ia t word on the ubject - a if it would be a major di a ter fo r anyone to be caught
being wi er than hi ance tor !9
Precedent i con ervative. It favour the statu quo. Precedent low down the pace of change
within a legal y tem. 10 In a world where thing are con tantly in flux, where thing are alway
changing, and where the pace of change eem ever to increa e, the very advantages of prec-
edent can thu be a di advantage. By making the law predictable, precedent also make it pre-
dictable that law will be uitable for old ocial condition but not fo r tho e that pre ently obtain.
Law i certain but al o certainly out-dated. Law i con i tent but a1 o con i tently wrong.
For traditional theori t the olution to the e problem i clear. The legi lature exi t
to change legal rule . Parliament ha the political legitimacy to am end the rule of the
game. The judiciary, being unelected profe ional who merely have a particular technical
competence, are imply there to apply tho e rule which the legi lature have made, or by
implication, approved.
There are everal problem with thi account of the judge' role. One difficulty i its
political naivete. The parliamentary timetable i a crowded matter. There is not the time
~o debate all the legi lation that a government would like to put forward in o rder to fulfil
~t own programme. There i till le time for mea ure which may be of great moment or
t~portance within a narrow area oflaw but which i of no pre ing weight fo r the popula-
tiOn taken a a whole. There i almo t no time at all for idea for legi latio n which are not
favoured by the government.'' A econd problem for thi traditional account of precedent
i that mo t people, including most judges, now accept that judges do indeed make law. 11
It i perhaps for this reason that the then Lord Chief Justice, Lord Woolf, cautioned against
an over-relian ce on a rigid view of precedent:
The rules of precedent reflect the practice of the courts and have to be applied bearing m mind
that their objective is to a ist the admini tration of justice. They are of considerable impor-
ta nce because of their role in achieving the appropriate degree of certainty a to the law. This
is an important requirement of any ystem of justice. The principles should not, however, be
regarded as o rigid that they cannot develop in order to meet contemporary need .13
The problem of the concept of precedent
Con tained within the bald account of the basic concept of precedent, in the quotation from
Mirehouse v Renne[ (see footnote 6), are it major problems as a theory oflegal rea oning.
Fir t, in this quotation we are told that precedent is a matter of looking back to both
'judicial precedents' (by which is meant judgments) and 'legal principles: The e are very
different ki nd of things. Judgment are relatively objective thing . We can at least identify
what a judgment is. We can agree about which physical reported ca e we are taking about,
although , as we shall ee, we may disagree about what it decided or what it mean . If two
people are told to look to past judgments, there i a rea onable expectation that, if they are
diligent, they will both find the same material. Legal principle are le clear. 14
A legal principle is not imply what wa decided or found in a particular ca e. It is an
idea which run through a whole eries of cases and, perhaps, aero s many different area of
law. It i a general statement about behaviour. Dworkin argues that the di tinction between
legal rules and legal principles i a logical one which goe to their very e ence. 15 Legal rule
are applicable in an ali-or-nothing manner whil t principle have weight. If a legal rule
ays you hould not murder that is an end to the matter. 16 With a principle it i not imply
a question of whether or not a principle applie but, rather, a que tion of how important it
i in a particular ituation. An example of a legal principle i the tatement that 'no per on
can benefit from their own wrong: From thi general principle Engli h law deduce the
particular rule that a person who is a beneficiary under a will cannot inherit if they murder
the testator. 17 Yet we cannot say that in every situation the Engli h court prevent a per on

Oxford, ch. 5. The ugge tion that Parliament doe not have the time to deal with precedent that have lo t their
8 value is not a new one. ee, for example, Maitland' as ertion that '(w]e cannot, I fear, affirm that Parliament
Lord Mackay, 'Who Make the Law: The Times ( 1987) 3 December. Lord Mackay wa a Lord hancellor adequately perform thi scavenger's task' (F. Maitland, 'The Making of the German Civil Code' in F. Maitland,
and therefore at that time both am b f h h· h · ·
• em er o t e 1g e t court and a mm1ster w1th re ponsib1hty for appointmg Collected Papers ( 1911) ambridge Univer 1ty Pre , Cambridge, vol. lll , p. 4 7).
JUd~e · ee also Jacob LJ m Acta vis UK Ltd v Merk Co [2009]1 WLR 1186 at p 1209. 12 ee, for example, ir Louis Blom -Cooper in R v London Borough of Brent, ex parte Aw11a ( 1993) 25 H~R
T. More, Utopm (I 965) Penguin Har d h ·
• mon wort , pp. 42-3. ee 1mllarly J. wilt in Gulliver's Travels: 626 at p. 636: 'Judge do make law regularly.' In thi Judgment, ir Louis Blom-Cooper then go.e on to c1te
[1]t IS a m3Xlm among these lawye th t h h hb
rs, a w atever at een done before may legally be done again and Lord Reid' tatement: 'There was a time when it wa thought almo I indecent to sugge t that Judge make
therefore they take pecial care to e d 11 th · d · · ' '
r cor a e1r eciSIOn formerly made again t common ju tlce and law- they on ly declare it .... But we do not believe in fairy tales any more .. . for better or worse Judge d~ ~ake
t h e general rea on of mankind The e u d h f . '
th . . · n er t e name o precedent, they produce as authontie to ju tify law' (at p. 637). For Lord Reid' reflection on the limit to legitimate JUdicial law-making, ee Lord Re1d, The
e most 1ruqUitous opm10n · and the · d r ·'
( 1975) JM Dent, Lon d on, p. 266.)
' JU ges never •au to direct accordingly. (]. Swift, Gulliver's Travels Judge a Law Maker' ( 1972) 12 Journal of the ooety of Public Teacher of Law 22.
13
10 R v impson [2003] 3 All ER 53 1 at p. 538. . . ,
Wh1ch i not to a that 1t 11· 1 14 orne writer have a serted that the di tinction between a legal rule and a legal pnn 1ple ' too vague to
'elasllcity m the au tho ty • h lltop d a together. In an e ay publi hed m 1939, Lord Wright wrote of the
n 1e 1 at a owe the law to ad (L d w · h , • be of much significance' (A. imp on, 'The Ratio Decidendi of a a e' ( 1957) 20 Modern Law Review 413 at
in Lord Wnght, Le a/ Essa 5 and vance . or .ng 1, The ommon Law in its Old Home
further R. Buxton, ~How t:e Com;ddresses ( 1939
) Cambndge Umversity Pre s, ambridge, pp. 341 -2). ee p. 414).
15 For a tatement of the e argument , ee R. Dworkin, Taking Rights eriou.ly ( 1977) Duckworth, London,
Law Quarterly Review 60. on Law Get Made: Hedley Byrne and other autionary Tale '(2009) 125
pp. 22-8.
" For an account of the pre ure on the arha 16 Although, of our e, there will be mu h argument a to what act of killing con titute 'murder:
ernment and no P mentary timetable and the different time given over to gov-
n-government measure , ee P. Orton, Tile 17
om mons in Perspective ( 198 1) Martin Robert on. Ieaver v Mutual Reserve Fund Life Association [ 1892} I QB 147.
 CHAPTER 5
86
benefiting, directly or indirectly, from their wron~. Were w~ ~o argue this, we would be
arguing that Engli h ourt are court of moral tmply dectdtng who has acted unfairly
18
and rectifying that unfairnes -
Legal principle are, by their very nature, le cle~r than rules. "!e
can~ot be certain of
the content of a legal principle. We cann t be certam where we wtll find tt. We cannot be
certain h wit will be applied. And yet legal principle , them elve uncertain, are one of the
two ource of precedent: s mething which we are told will bring the law certainty.
A econd difficulty in the very idea of precedent which we find in the quotation from
Mirehouse v Rinne/ ( ee footnote 6) i that we are told, in applying precedent, to take that
which ha g ne before and apply it by a proce s of analogy. Analogy means comparing two
or more thing and eeing they are the arne in important respect though they are very dif.
ferent in other le important matter . But deciding what i important is something which
eem inherently ubjective. What i important to me may not be important to you:
The whole point of argument by analogy in law is that a rule can contribute to a decision on
fact to which it i not directly applicable; ca e of'competing analogies' involve rule pull-
ing in different direction over debatable land between. 19
Precedent i not a way for u to decide what the law hould be. It is a way for us to decide
what the law i , or, alternatively, for u to decide what judge will ay that the law is. If anal-
ogy involve argument that are 'debatable: how are we to decide what will be important for
a judge? How doe analogy provide con i tency in deciding wh at i important? How does
a theory of precedent tell u which ca e in the pa t we hould use?
Thi problem i an we red in very different way by traditional theori ts of precedent and
by more modern writer who have been heavily influenced by account of lingui tic and
the philo ophy of language. For traditional theorists, the point abo ut precedent was that it
gave you a erie of rules which, at lea tin the va t majority of ca es, would lead to everyone
knowing which part of which ca e hould be applied in the fu ture. 2 For more modern ° The point he make is that that which is learnt is not a et of facts but a method of articu -
writer , the problem i more complicated.
One analy t has begun by ugge ting ' [i]n order to under tand what one has read [and one
might add apply what one has read], one must be able to recognise what is significant in the
text, and what i trivial:21 However, he ha gone on to ob erve, notions of what is trivial and
what i important are determined not ju t by orne kind of inherent value in the thing that one
ha read or by an under tanding of technical 'legal' word but, rather, by one's subjective reac-
tion which, in turn, result, in large part, from the group from which one come . ln looking at
a car-era h, arti t and lawyer ee different things a being important and trivial. Arti t are
concerned with the cene' graphic po ibilitie ; lawyer with question of blame. To the extent
that ~ne' ubjective reaction re ult from the group from which one come , those reaction are
predtctable. They will be the arne, or imilar, to other members of the group. Thus, if you are
~art of a grou_p oflawyer , what you will ee a important and what you will ee as trivial in past
Judgment will be the arne or imilar to the choices made by other lawyer .22
18 F n
. or orne re ect10ns on the possible limttatton to thi principle ee J hadwick 'A Te tator's Bounty
toht layer'( 1914)30LawQ. uar ter1Y Revtew
· 21 I. oodhart rai e the' query
. whether thi
' principle cover a
bene fi ctary who e negltgent dnvmg kills th t (A G
9 ) b d . e estator · oodhart, Essays in ]urrsprudence and ommon Law
( 1 31 am n ge Untver tty Press, ambndge, p. 7).
19
• ~a~ ormick, Legal Rules arJd Legal Reasomng ( 1978) larendon Pre s, Oxford, p. 155.
20
Hart s logtcal y tern', ee n. 2.
21
M. Davie , 'Reading a e • (1987) 50 Mo d ern Law Review 409 at p. 409.
22
Thu , Kennedy argue that a student' e . fb . .
a new 1 d xpenence o etng tn a law school is both an experience oflearmng
anguage an a proce of b . . I d.
Educatton as Tram f, H ~~~g octa tze mto a particular way of eeing the world (D. Kennedy, ' Legal
mg or terarc Y in D. Kairys (ed.), 71Je Polrtics of Law ( 1990) Pantheon, New York).
ENGLISH LEGAL REASONING · CASE LAW 87
Two points need to be made about the e modern accounts. First, the e arguments sup-
plement traditional theories. They do not replace them. The new approaches con ider-
ably change the significance of old account . Traditional account had purported to be the
whole, or almost the whole, explanation of the nature of English legal reasoning.B More
modern accounts stress the need to place di cus ion of the rule and principles of prec-
edent in the social context wherein that reasoning take place. Second, de criptions oflegal
reasoning, which uggest that we need to take account of the nature of the group of people
doing the reasoning, are similar to argument in other academic and professional areas,
which suggest that the kind of reasoning u ed is partially con tructed by the dynamics of
the group of people who do the rea oning. Thus, for example, the American poet and critic,
J. V. Cunningham, writing for a friend who is being examined for a doctorate in Engli h,
asks:
After these years oflectures heard,
Of papers read, of hopes deferred,
Of days spent in the dark stacks
In learning the impervious fact
So well you can dispense with them,
Now that the final day ha come
When you hall name the date
Where fool and scholar judge your fate
What have you gained?
and answers:
... you have learned, not what to say,
But how the saying mu t be said. 14
lating arguments that will be convincing to a particular group. Thu it is with English
legal rea oning. That which i learnt in learning English legal reasoning is not imply a
set of rule and principles but also a set of social re ponse suitable for a certain body of
people.
In hi lectures to first -year law tudents, Karl Llewellyn argued that only total immer ion
would enable students to understand the language oflaw. The publi hed ver ion of hi lec-
tures begins with the fairy tory of the man who throws him elf into a bramble bu h lo ing
hi sight and then throws him elf in again and so regains his sight. 'The life of the word i
23 orne writers have argued that traditional account of legal rea oning have never pretended to be com-
plete account . Thu , for example, Farrar and Dugdale comment that uch accounts have never 'purported to
provide a cientific route to the truth' (J. Farrar and A. Dugdale, Introduction to Legal Method (3rd edn, 1990)
weet & Maxwell, London, p. 82). It is true that some traditional theorists have been aware of the hortcoming
of their own theorie , though they have not been able to remedy these failing . However, it t le clear that they
have realized the full implications of the e problem . Thus, for example, ro stated that he could not provide
a formula for determining the ratio decidendi of a ca e (R. ro , Precedent in English Law (3rd edn, I 977)
Clarendon Pre , Oxford, p. 76). However, de pite thi and other acknowledged limitation to hi analy i he
continued to maintain that '[ t]he peculiar feature of the Engli h doctrine of precedent i it trongly coercive
nature' (Cross ( 1977) p. 4). Moreover, other writers do appear to believe that a ientifi form of precedent
exi t enabling u to deduce the law from a imple reading of ca e ( ee, for example, ). . mith, Tlze Law of
ontract ( 1989) weet & Maxwell, London, p. v).
24 ) . V.
unningham, 'To a Friend, on her Examination for the Doctorate tn Engli h' tn ). . unnmgham ,
TI1e Poems of]. V.
unningham, edited and with an introduction by Timoth teele ( 1997) wallow Pre Oh10
Univer ity Pre , Athen .
 88 CHAPTER 5
in the u ing of them: argue Llewllyn. 25 In becoming lost in u ing them when they are new
to u o, he argued, we begin to under tand them.
In learning the ere pon e , ne learns not ju t what particular word mean: the legal ignif-
i ance of the text doe not depend olely on the pre ence or absence of recognisably 'legal'
word . It i not an under tanding of the word 'appellant' and 'respondent' that separates
the legal reader' under tanding . . . from tho e of his or her non-legal colleagues. Rather it
eem to be the ability to recogni e certain combination of word , whether 'ordinary' or
'legal' a having some ignificance other than that which i immediately apparent as their
urface meaning.26
In learning, in the hackneyed phra e, to 'think like a lawyer' (or perhaps more pertinently
peak and write like a lawyer} one ha to become a 'native peaker'; not merely conversant
with the language but able to ound a though it i one' fir t language. One learn to listen
to the way in which thing are aid:
IIi ten to you speak, hear only tone;
I feel the weight of word , not what they mean.27
The present system of precedent
Precedent i a concept; the form oflegal rea oning to be found in 'the Engli h legal y tern'
at pre ent i one y tern of precedent. All ystem of precedent have the general feature of
incorporating the nece ity of taking into account previou legal opinions. However, each
Y tern ha it own individual characteri tic . Traditional accounts of precedent regard
the pre ent Engli h y tern a being comparatively rigid.28 By thi , theorists mean that the
pre ent Y tern provide for a comparatively high degree of control over the court ; that
judge have relatively little di cretion in their deci ion-making.
Precedent works as a way of controlling judge 'behaviour. Precedent dictates or at lea t
influence deci ion . It ay to a judge, thi case must be decided or hould be decided in
thi way. By doing that, it enable a lawyer to predict the movement of the law. However,
the current Y tern of precedent doe not simply involve looking back to every previous
analogou ca e.
Ratio and obiter
At the Common Law not every opinion expre sed by a judge forms a Judicial Precedent. In
?rder that an option may have the weight of a precedent, two thing must concur: it must be,
m the fir t .place' an opinion given bYa JU
· d ge, an d , m
· the econd place, 1t
· must be an opmwn
· ·
the formatiOn of which i nece ar Y10r c th e d ec1· •on
· o f the part1cular
· ca e, m other words, 11·
· law of theft does not require agreement, merely acquie cence. Obiter tatement , however,
mu t not be obiter dictum .29
Tr~d~tional .account of precedent di tinguish between that which i ratio decidendi, an
opm!On which i nece ary for the deci ion in the ca e, and that which i obiter dictum,
: K. L~ewellyn, Tile Bramble Bush ( 1960) Oceana Publication New York p 41
DaVIe ( 1987) p. 415. ' ' · ·
22117 eil Powell, • ohloquy' 10 A eason of aim Weather ( 1982) arcane!
Cro (1977) p. 4. ew Pre , Manchester.
29
Profe or Jo h n h lpman ray quoted in Goodhart ( 1931) p. I.
ENGLISH LEGAL REASONING CASE LAW 89
remarks in a judgment which are made merely in pa sing. It is the ratio that bind the
future court. 30 Ratio is that which another court i obligated to follow. Those parts of a
previous judgment which are obiter dictum are not binding on any court though they will
be of persuas1ve. va 1ue. 31
It is, in part, the notion of ratio which gives the current English sy tern of precedent its
relatively strict character. Being required to look to previous cases for your idea of how to
deal with a new case is in it elf something which reduce the range of options which is open
to a judge. However, this restriction is omething which is in itselflimited. A ca e grow so
the range of decision grow. If judges can pick and choose among t different previous deci-
ions, and amongst different parts of different deci ion , then a skilful and knowledgeable
judge (or lawyer} will find it easier and easier to find previous judgment which justify any
decision they wi h to arrive at. It becomes just a matter of finding au eful quotation which
will seem to rationalize the argument that the judge wishe to make.
The use of ratio calls for a much more preci e u e of previous ca es. Ratio requires law-
yers to analyse pa t cases, not for argument which we may find useful, but, rather, for them
to look at past case for lines of reasoning which are binding. At the arne time, ratio tell
us that parts of pa t cases, perhaps large part of past cases, are merely obiter and therefore
not binding in precedent at all.
Yet, traditional account complicate the ystem of precedent for, at the arne time a
emphasizing the importance of ratio, traditional accounts of ratio also note that:
[i)t is a truism ... that dicta [obiter] are of varying degrees of persua ivene s ... Dicta of the
highe t degree of persuasiveness may often, for all practical purpose , be indi tingui hable
from pronouncements which must be treated as ratio. 32
To say that obiter remark till have orne importance, even though they are not binding,
would not be incompatible with arguing for the overriding significance of ratio. Where
no ratio exi t , where upon a particular point there is no existing line of binding legal
reasoning, one might expect the courts to turn to obiter tatement . One might ay 'obiter
[is] ... something of le s force than a rule but ... might be worth following~ 33 The court
are then continuing to u e precedent but in the looser en e of simply looking back at past
decision for idea about how the new ca e might be decided. A degree of con istency in
decision-making i till preserved even though the new court may not choo e to follow
every previous obiter decision. However, to say that obiter remark can be o per ua ive a
to be indistingui hable from ratio is much more troubling.
There is in the traditional theory of precedent an inherent conceptual difference between
the importance of ratio and the significance of obiter. Ratio is important becau e of it
obligatory character. Courts must follow a ratio whether they agree with it or not. For
courts ratione are like the law of theft. One may not agree with the law of theft, one may
feel like Proudhon that it i property that i theft, but legally one i obliged not to teal. The
30 Not every case has a ratio. For example, a ca e which i heard 10 a multi-judge court like the Court of
Appeal or upreme ourt may have a number of judgments which reach the arne condu ion as to who \VJn
and who lo e by different routes. jacob L) ha recently ob erved that, although judge tr to articulate a ratio
when they write their judgment , they do not alway ucceed (Actai'IS UK Ltd v Merk & o [2009] I WLR
1186 at p. 1209).
ll . Mac ormick, 'Why a e have Ratione and what the e are' in L. Gold. te10 (ed.), Precedent in Law
(1987) larendon Pre , Oxford, p. 157.
2 3' Farrar and Dugdale ( 1990) p. 96.
' ro s ( 1977) p. 81 .
 CHAPTER 5
90
are worthy of con ideration first becau e they have been made by judge within the ame
y tern. If con i tency i a virtue for a legal ystem it is worthwhile eeing whether there
i good rea on for departing from argument which have previou ly been u ed. Second,
obiter tatement are in them elve reflection on the law. A new decision is improved the
more judge have the benefit of previou argument before determining which side to find
for in the a e before them. Obiter tatement are in th i ense commentarie on the law.
Like the work of academic lawyer , they may convince other by thei r logic or their rhetoric
that they offer the mo t piau ible account of the law. Obiter judgments are, amongst other
thing , capable of being per ua ive in the arne manner that anyone's argument can be
per ua ive. But if thi i the ense of per uasive, how can one ever say an obiter remark can
be likened to a ratio?
There are two po ible way of explaining the powerful effect of obiter which are con-
i tent with the traditional divide between ratio and obiter. One is to ay that obiter remarks
from higher court reflect the way in which that court i rea oning. Thu , for a lower court,
the e remark mu t be treated a though they were ratio becau e, hould the ca e before
them be taken on appeal, that i the way in which the case will be decided by the higher
court. On this account, treating orne obiter statement a ratio i merely a way of reduc-
ing the quantity of litigation within a legal ystem by fore tailing the possibility of appeal.
econd, one might argue that the higher the court in the legal y tern the more experienced
and the more able the judge. It may be en ible to treat the arguments of judges of great
learning a though they were ratio becau e, in fact, they are always likely to be very per-
ua ive. 34 Both the e argument have orne merit in them. Both, however, are only partial
account of the problem, both are only limited explanation . First, to treat obiter remarks
a binding becau e they repre ent the view of an appellate court i to forget that, if the
remark are obiter, they concern thing that have not been central to the decision made by
the court. They, thu , refer to matter upon which the court has not heard complete argu-
ment. In an adver a rial ystem courts may make different decisions when they have heard
longer argument . Obiter remark may be a clue to how higher courts will decide case in
the future but they are neither unambiguou or determinant in their meaning. Second, to
argue that judge in higher court are more learned and therefore their word are likely
to be more per uasive may accord with their own view of them elves. However, this view
rai e a number of problem . Plainly judge in higher courts cannot all be uniformly able.
Nor can they all be equally able about all area of law. orne court see orne types oflaw
but rarely and their pronouncement on uch area when they do see them may be of a low
tandard. 35 Even able judge writing in area that they are familiar wi th may make mistake .
14
In WB Anderson & ons v Rhodes [19671 2 All ER 850 at p. 857, airns J tated that '[ wlhen all five mem·
ber of the House of Lord have all aid, after clo e examination of the authoritie , that a certain type of tort
eXJ t , I think that judge of fir t instance hould proceed on the ba i that it doe ex.i t . .. : This tatement could
be taken to reflect either or both of the e two arguments.
35
Thu • for example, in an article on Anderton v Ryan [1985 1 1 A 560, a crimmal law ca e decided in the
House of Lord , Profe sor GlanviJJe Williams wrote:
the tale I have to tell i unflattering of the higher JUdiciary. It 1 an account of how judge invented a
rule ba ed upon a conceptual mi understanding; of their determination to u e the Engli h language o
trangely that they spoke what by normal criteria would be termed untruth ; of their invincible ignorance
of the me they had made of the law; and of their immobtlity on the subJeCt, carried to the extent of
ubvertmg an Act of Parliament designed to put them traight. (G. Wil liam , 'The Lords and Impossible
Attempt • or Quts Cu todiet Ip o Cu lodes?' (1986) 45 Cambridge Law )ournal33 at p. 33.)
In a sur~ey of ca e dectded m the Hou e of Lord m 1979, Murphy and Rawhngs noted that 5 of the 58 case
~ere cnmmallaw cases (W. Murphy and R. Rawhng , 'After the Ancien Regime: The Writing of Judgments
10 the Hou e of Lords 1979/80' ( 1981) 44 Modern Law Review 617 at p. 617). In a ub equent judgment of
ENGLISH LEGAL REASONING . CASE LAW
91
Expertise in a writer can alert a reader to the probability that the writer is expressing a view
that is accurate. It can never tell the reader the view i correct. Only the internal reasoning
of the writer's argument can do that.
Whil t neither argument above provides a compelling reason for treating obiter as though
it were ratio the traditional injunction to do so in some case reflects an important point in
the actual application of the theory of precedent. Whil t traditional theories of precedent
hinge on the importance of ratio, in practice judges and lawyers make a very heavy use of
obiter remarks in their arguments.36 One question which will recur in the remainder of this
chapter is whether thi heavy u e of obiter i wholly consistent with traditional account of
English legal reasoning.
Finding the ratio
There have been many different explanations which have sought to show how rationes are
to be distinguished from other part of a judgment. Thi proliferation of competing expla-
nations is, in itself, a strange feature of traditional account of English legal reasoning. If
precedent is about the search for certainty and con i tency, and if the use of ratione is the
way in which the pre ent system of precedent provides a comparative degree of trictne ,
then it seem troubling that neither academics nor judge can provide any clear account of
how rationes are to be found . If you were one of a group of student and, in trying to ascer-
tain the circumference of a circle, you were not told the correct formula to use but, rather,
were told that there wa no agreement about the correct formula, you would not expect
your group to agree about the size of the circumference. Yet, it ha been aid by one of the
foremo t theorists of precedent that ' [i]t is almost impo ible to devi e a formula for deter-
mining the ratio decidendi of a ca e... : 37 Indeed, the matter goe further. What we mean
precisely by the term 'ratio decidendi' remain a matter of dispute. Goodhart de cribed
the term as 'the most misleading expre ion in Engli h law:38 Writing in 1957, Montro e
distinguished between 'classical' and other u es of the term ratio.39 More recently, Andrew
ha uggested that there are four possible definitions of the term ratio.40 Other have even
uggested that 'it is a mistake to seek ... a prescriptive definition of the concept of ratio
decidendi: 41
Each account of how to find a ratio offer it own problem . By looking at one account
we can ee the general kind of difficultie that are rai ed. Goodhart' de cription of the ratio
and how to find it i especially worth looking at for two rea ons. First, Goodhart' account
the Hou e of Lord , R v hivpuri [1986 I 2 All ER 334, whtch reversed Anderton v Ryan, Lord Bridge atd of
William ' article '(tlhe language i not con picuous for it moderation, but it would be foolt h .. . not to recog-
ni e the force of the criticism' (R v Shivpuri [19861 2 AJJ ER 334 at p. 345).
36
Thu • for example, for many year the English law of negltgence hinged upon an obiter doctrine, Lord
Atkin' neighbour principle, annunciated in a cotti h ca e (Donoghue v Ievenson [1932] A 562 at p. 580).
Marke eni and Deakin wrote of thi principle'[ i] t tatu is at be t that of a gutde-line of general principle; in
no en e is it a formula which can be mechani ally applied' (B. Marke ini and . Deakin, Tort Law (3rd edn,
1994) larendon Pre , Oxford, p. 67). orne judges have argued that there is too heavy au e of obiter remarks
in legal argument ( ee, for example, Wright (1939) p. 345).
37
ross ( 1977) p. 76.
38
' [W]ith the po ible exception of malice .. . ' (Go dhart (1931) p. 2).
39
). Montro e, 'Ratio Decidendi and the Hou e of Lord ' ( 1957a) 20 Modern Law Review 124 at p. 124.
10
N. Andrew • 'Reporting ase Law: Unreported a e the Definthon of a Rallo and the nteria for
Reporting Deci ion ' (I 985) 5 Legal tudie 205 at pp. 209-14.
41
Farrar and Dugdale ( 1990) p. 94.
92 CHAPTERS
i not onl devel ped by the author and defen~ed by hi~ at .length. I~ i al o. analy ed by
42
ro in hi leading monograph on precedent. econd, 111 ht book on JUdges m the House
of Lords, Pater on notes that ro and Goodhart are two of the very few academics who e
work wa aid to intere t the judiciary. 44 Neither of the e two facts mean that Goodhart's
account of how to find a ratio i in fact correct. They do, however, ugge t that his work
might be in tructive. 45 . .
Goodhart begin by di tingui hing the earch for a ratto tn a ca e from the attempt to
find the logic in a judgment. 'The logic of the argument, the analy i of prior ca es, the
tatement of the hi torical background may all be demon trably incorrect in a judgment,
but theca e remain a precedent nonethel s :46 Each reported ca e, no matter how wrong,
i a precedent. For Goodhart, ' [t]o determine the principle [the ratio] of a ca e the first and
mo t e entia! tep i ... to determine what were the material fact on which the judge based
hi conclu ion'.47 Upon it face, thi may eem a strange starting point. Ratios are, after
all, e ntially rea on even though they may be bad or illogical rea on . The distinction
between a reason and a fact i one which eem clear. However, common law legal reason-
ing i alway rea oning about omething; it i never rea oning about an ab tract concept.
Ratio are tatement of rea on about the law in relation to a particular set of fact . It i
therefore with the e fact that Goodhart begins. ince ratione concern the law a the judge
ee it '[ w]e are bound by the judge' tatement of fact even though it i patent that he has
mi tated them:48 The fact we are searching for are the facts in the case not the fact in the
real world. The judge might have decided theca e differently had he or he known that the
fact tated were incorrect but the earch for a ratio i about looking for the law a it was
tated in a ca e not a it might have been tated.
Goodhart' phra e 'material fact ' i an important part of his theory of how to identify
a ratio. ot all fact in a ca e are 'material fact : 'Too often the cautiou judge will include
in hi opinion fact which are note entia! to hi judgement, leaving it for future genera-
tion to determine whether or not the e fact con titute a part of the ratio decidendi: 49 The
reader mu t identify tho e fact in a ca e which are material and discount tho e which are
immaterial. Fact are material when they are vital to the legal decision, immaterial when
they are irrelevant. If the alteration of a factual detail would make a difference to the con-
clu ion in the ca e, then that fact i material. However, the reader i bound by the opinion
of the judge if that opinion i tated. ' [A]ll the fact which the court specifically states are
material mu t be con idered material: 50
Goodhart ugge t ome ba ic principle for deciding whether or not facts are material:
[T]he fact of per on, time, place, kind and amount are presumably immaterial ... [A]ll the
fact which the court impliedly treat a immaterial mu t be con ide red immaterial ... If the
42
Goodhart ( 1931 ) ch. I; A. Goodhart, 'The Ratio Decidendt of a a e' ( 19S9) 22 Modern Law Review 11 7
43
Cro ( 1977) pp. 66-76. This pa age is retained m the mo t recent edition of thi work edt ted by Cro
and Harns (R. Cro sand). Harri , Precedent in English Law ( 1991) larendon Pre s, Oxford, pp. 63-72).
44
A. Pater on, The Law Lords ( 1982) Macmillan, London, p. 19.
45
Goodhart' analy 1 i not accepted by eve ryone. Montro e and impson, in an inter hange of oppo ·
mg v1ew on the nature of the ratio, are agreed in findmg Goodhart's analy i un ati factory (see Montro e
(1957a); imp on (1957); ). Montrose, 'The Rat1o Decrdend1 of a ase' ( 1957b) 20 Modern Law RevteW 587;
and A. imp on, 'The Rallo Decidendi of a ase' (1958) 21 Modern Law Review ISS). Similarly, tone has
argued that the a sumption underlymg Goodhart' theory are unacceptable (J. tone, 'The Rat10 of the Ratio
Decrdendi' ( 1959) 22 Modern Law Review 597 at pp. 603- 10) . Andrews al o find fault in oodhart' the is
(And rews ( 1985) particularly at pp. 210-11 ). However, were we to write only about an approach that had unt·
ver al, or even large- cale, acceptance we would have to be ilent.
46
Goodhart ( 1931 ) p. 2.
47
Goodhart ( 1931) p. 10. •s Goodhart ( 1931) p. 12.
49
Goodhart ( 1931) p. IS. 50 Goodhart (1931) p. 20.
ENGLISH LEGAL REASONING CASE LAW 93
opinion doe not distinguish between material and immaterial facts, then all the fact set
forth in the opinion must be con ide red material with the exception of those that on their
face are immaterial. There i a presumption against wtde principles of law, and the smaller
the number of material facts in a ca e the wider the princtple will be ... [If there are multiple
judgments in a case] the principle is limited to the sum of all the facts held material by the
various judges. 5 1
Once the material and immaterial fact in a case, a een by the court, have been e tablished,
the ratio of the case is the conclusion to the case ba ed on the material facts. 52 Having found
the ratio we are then in a position to apply it:
[T]he final tep is to determine whether or not it is a binding precedent for orne succeeding
ca e in which the facts are prima facie imilar. This involve a double analysis. We must first
tate the material facts in the precedent case and then attempt to find the material ones in
the second one. If the e are identical, then the first case is a binding precedent for the sec-
ond, and the court must reach the same conclusion a it did in the fir tone. 53
What i surprising about Goodhart' method of finding a ratio is not what it ay but what
it remains ilent about. Many of the step sugge ted by Goodhart rai e the que tion of
whether the theory can be said to be a complete explanatjon of legal reasoning given the
number of que tions unanswered. Thu , for example, in a ses ing the utility of the sugge -
tions for how to determine what are the material fact in the case it i nece ary to remind
ourselves of the function and advantages of precedent. Precedent is there to gwde and
control judicial decision-making. It i a way of providing certainty in the law by making
ure everyone will make the same decisions about new case . It i a way of providing pre-
dictability in the law by allowing others to anticipate what a judge's deci ion will be before
they have arrived at it. In this context, everal of Goodhart's uggestions are problematic. In
criticizi ng Goodhart's theory, Stone has argued that one of the central the es of the theory is
the notion of the material fact but 'there will often be the grave t doubt a to what fact the
precedent court "explicitly or implicitly" "determined" to be material: 54 If we cannot know,
with certajnty, what a material fact is, how, when thi lies at the centre of Goodhart's the is,
are we to use the method? imilarly, there is a presumption that omething like the identity
of the party to the case is not a material fact. But presumptions are rebuttable. When i thi
pre umption not to be followed? On thi , Goodhart i ilent. Facts et forth in the judge's
opinion are material with the exception of those 'that on their face are immaterial: How
doe one recognize a fact that i on its face immaterial? How doe one know that other will
make the arne judgment? How doe one know that judges will make the arne deci ion?
Again, on thi matter Goodhart i ilent. A a predicative tool, Goodhart' theory eem
deficient. 55 It exemplifie Cro s's statement that there i no formula for finding a ratio and
howing what problem that brings. 56
In eeking to provide a cure for the deficiencie in Goodhart' approach to finding a ratio,
two broad approaches might be ugge ted. The fir t would be to provide a more preci e
51 52
Goodhart (1931) pp. 16- 17. oodhart (1931) p. 22.
53
Goodhart (1931) pp. 23-4. S4 tone (1959) p. 605.
55
Whtch i not to ay that it ha no merit or no advantage.
56
There are other criticism to be made of the theory which, if accurate, point not to 11 ltmttatton but,
rather, to the fact that it might be wholly mi directed. particular problem i arguably the trong empha t
that Goodhart gives to the importance of facts in finding a ratio. Tht empha 1 ha the advantage of makmg
the proce potentially more objective but it runs the ri k of bemg maccurate a a de npllon of what ourt
do and what courts ay they do. It devalue , perhap to too great an extent, the tmportance of rea oning 10 the
proce of reaching a conclu ion in a judgment ( ee ro ( 1977) pp. 70-6).
 94 CHAPTER 5
theory which would tell the reader when, for example, a fact presumed immaterial w
in fact material or what exactly wa meant by a fact ' immaterial on it face'· Thi app roacahs
~ ou ld be to ay that the broad picture painted by Goodhart wa es entially correct but th
what wa needed wa more detailed bru h -work, u ing the arne tyle, to fill in them at
mu.
tiae. A completely different approach would be to ay that the problem een in Goodhart's
ugge tion , when viewed in the conte t of the general difficultie in the general conce
1
of precedent noted in thi ection, ugge t that thi approach to legal rea oning, at least~f
taken a a omplete explanation, i fundamentally flawed .57
The hierarchy of courts
Precedent i not ju t about identifying a ratio. It also involve con ideration of the status of
the court. Precedent i a broadly hierarchical y tern, with court being bound by the courts
above them. Thu , the upreme Court, formerly the Hou e of Lords, is the highest court.
It ruling are binding on all court below it, including the Court of AppeaJ.SS However,
the upreme Court is not bound to follow it own previou ruling . In 1966, the Hou e of
Lord , a it then was, i ued a practice tatement aying that it would depart from its own
previou deci ion inca e where it 'appeared right to do so: 59 Thi power to depart from its
own previou deci ion wa not u ed lightly by the Hou e of Lords. The practice statement
note the importance of precedent in providing certainty. The tatement also empha izes
the need for the Hou e to consider the retro pective nature of any failure to stand by it own
previou deci ion . Tho e who have ba ed their action on the law as annunciated in Hou e
of Lord and Supreme Court deci ion , are likely to be aggrieved if a subsequent decision
et a ide pa t law. In hi analysi of the House of Lord , Pater on argues that the House
made very paring u e of their new power in the period between 1966 and 1980.60 Thi
continue to be theca e, with there being no ugge tion that the Supreme Court will behave
~ifferently. However, there can be triking exception . The decision to depart from the
Judgment m Anderton v Ryan came only 11 month after the deci ion had been made. 61
The Court of Appeal' po ition in the hierarchy of the court i somewhat equivocal. In
Young v Bristol Aeroplane Co. Ltd, the Court of Appeal laid down the general rule that it
wa b~und by it own previou deci ion .62 This rule wa subject to a limited number of
exceptiOn · Where the court was faced with conflicting previou decision , it would have
to choo e between them. If a deci ion wa made per incuriam , it need not be followed.
Finally, where a ub equent decision of the Hou e of Lord could not stand with a previous
s- h R v impson [2003] JAil ER 53 I at p. 538.
~ t ird approach would be to elect orne other theory of the ratio constructed in term of traditional
theone of precedent.
58
Per Lord Diplock in Davies v John son [ 19791 A 264 at p. 328. ee also Lord Hail ham in Broomt v
asse/1 [ 1972 1A 1027 at P· 1054 and Lord Denning in Callie v Lee [ 1969] 2 h 17 at p. 37. It i deci ion of
th_e upreme Court that are binding, not, technically, deci ions of the Privy ouncil. Thu , in the High Court
Diplock 1 was free not to follow the Privy ouncil decision of Lord trathcona teamship o Ltd v Dommtotl
Coal 0 · Ltd [ l926] A I 08 (Port Lme Ltd v Ben learners Ltd [ 1958] 2 QB 146) Diplock j did however ay
that the compo ition of the co t · h h . ' '
ur m t e lrat cona ca e wa 'e ntitled to re peel which in a common lawyer
b ord er upon awe' (p. 165).
:: [1966]3 AllER 77. 60
Paterson (1982) pp. 162- 6.
L d ~nderlotJ v Ryan [ !985]1 A 560; R v htvpuri [ 1986] 2 All ER 334. On the way in which the Hou e of
or power to overrule it elf ought to be u ed B H · ' · 0 year before in Callie v Lee [ I969] 2 h 17 at p. 37.
•w "p d ee · arn , Fmal Appellate ourt Overruling the•r wn
~on[
6 1944 1 KB 718.
g r ece ents: The Ongoing earch for Principle' (2002) 118 Law Quarterly Review 408
· 71 London treet Tramways o. Ltd v London ou11ty ouncil [ 1898] A 375.
ENGLISH LEGAL REASONING : CASE LAW 95
deci ion of the Court of Appeal, even though the House of Lords had not explicitly over-
ruled it, a new Court of Appeal need not follow it. 63
Read literally, the potential cope of the exceptions to the rule in Youngv Bristol Aeroplane
Co. Ltd was such as to ca t the very rule in doubt. The per incuriam exception in it elf could
be read as putting the foundations of the doctrine of precedent at risk. The rule, briefly
tated, hold that where a decision is made without taking account of some statutory or
other authority binding on the court the decision can be di counted. The problem that this
rai e i that virtually any decision can be discounted if all that i required i evidence of
some failure to cite some authority. The wealth of previous case law means that only a small
percentage i ever cited in court. For this reason, the per incuriam rule has usually been
strictly interpreted.64 Courts have consistently limited the doctrine to ca es where citing a
relevant authority would, not might, have resulted in a different conclu ion to the case. 65
However, at the same time, other exceptions to the rule have been found. In Boys v Chaplin,
it wa held that a decision made in an interlocutory hearing would not be binding upon a
subsequent Court of Appeal.66 In Rickards v Rickards, it was held that a decision involving
a 'manife terror' need not be followed. 67 This proces of adding exception to the general
rule continues to the present day. In Acatvis UK Ltd v Merk & Co, the Court of Appeal ruled
that it wa not bound by its own previous deci ion where they were incompatible with
what had become the ' ettled view' of the European Patent Office Boards of Appeal on a
matter relating to European patent law. 68 By 1979, Lord Denning felt that exceptions were
'in the process of eating up the rule itself' and he ugge ted that the court no longer regard
itself as being bound by its own previous decisions. 69
We have already discussed the merits of the view that the Court of Appeal should feel
free to depart from its own previous decisions. 70 What is more important here i the que -
tion of the tatus of precedent that is raised in this ca e. Lord Denning had argued that
rules about precedent were not rules of law but rules of practice laid down by a court for
its own use. As evidence for thi , he cited the fact that the House of Lord had prior to the
1966 practice statement been bound by its own previous decisions.71 If the Hou e of Lords
had the power to change its own practice, if it was not bound by a rule of law decided in
1898, it must logically follow that the Court of Appeal, and indeed any other court, could
change its practice. Thi view had implicit support in the Hou e of Lords. Lord Salmon
pointed out that the significant difference between the 1966 practice tatement and Lord
Denning's arguments in Davies v johnson was the fact that the practice tatement had the
agreement of all the Law Lords, wherea Lord Denning' view wa a minority one, at the
63 In Ltmb v Union jack Removals Ltd, the Court of Appeal re-empha ized the importance of 1t not depart-
ing from its own previous decisions ([ 1998] I WLR 1354 at p. 1364). ee, however, Lord Woolf comment in
64 Accordi ng to Evershed MR, per incuriam ca e mu t be 'of the rare t occurrence' (Morelle Ltd v ~ akeling
[ 1955] 2 QB 379 at p. 406). ln 20 11 , of the case recorded on West Law, the courts accepted an invitation to
declare a decision per incuriam on ix occasions but rejected it in 17 ca e .
65 66
Morelle Ltdv Wakeling [I955]2 QB 379 at p. 406. [1968] 2 QB I.
67 [ 1989] 3 All ER 193. The Criminal Division of the Court of Appeal had alread made a iimlar pro-
nouncement in R v Gould [I968] 2 QB 65.
68 [2009] 1 WLR 11 86 at p. 1215. ln National Westmi11ster Bank pic v pectmm Plus Ltd and other [2004]
EW A iv 570, Lord Phillip ugge ted, at para. 58, that It wa not open to the ourt of Appeal to expand the
list of exceptions to the ru le created in Young v Bristol Aeroplane ompany.
69
Per Lord Denning in Davies v johnso11 [ 1979] A 264 at p. 283. He had made a Lmilar ugge uon ten
·o ee hapter 3, 'The ourt of Appeal'.
 CHAPTER 5
96
. e even within the ourt of Appea1. 72 However, the majority of the House of Lords
t tm
• h · f h
· ted the argument, in tead in i ting on the legitimate aut bonty o t e House. of Lords
reJeC
73
in applying it view of precedent to the ourt of ~p~eal. u sequent a~ademtc opinion
ha not followed the Hou e of Lords, with the maJonty unea y about the mherent logic of
the view being e pou ed by the Hou e of Lord .7 1 However, if precedent is m_er_ely a matter
of practice it doe make it potentially more un tab!~ than would be theca ~ tf tt was a rule
oflaw. hange in culture in courts have the potential to change precedent Itself.
The po ition of the High ourt i clearer than that ?f the ~ourt of Appeal. Judges in the
7
High ourt are not bound to follow deci ion ?f ? ~her Judge m th_e same _court th?ugh they
will tend to do 0 'a a matter of judicial com tty. Thus, though Judges m the Htgh Court
recognize the importance of the coherence and cert_ai nty whi_ch is a~h-ieved i~ they follow
each other' deci ion , there may be clear conflict w1th opposmg deciSIOns bemg made by
different judge . Judge in the High Court are, however, bound by deci ions of a Divisional
ourt. 76
Using precedents
We have now de cribed the broad technical feature of the present English system of prece-
dent. The next tep i to ee how the e feature are u ed in practice. How do they contribute
to the proce oflegal rea oning that re ult in judgments in individual cases?
The u e of ratios, and the u e of precedent generally, i just as puzzling as i identify-
ing a ratio. One much-cited passage about the u e of precedent was written by Lord
Hal bury: 'A ca e i only authority for what it actually decide . I entirely deny that it can
be quoted for a propo ition that may eem to flow logically from it.' 77 This i a trict and
re tricted view of the use of precedent. It is in keeping with the idea that precedent is a
binding y tern of rule which govern the court's behaviour. It limits the number ofca es
referred to in any new judgment to tho e who e ratio is clearly to the point. Yet, Lord
Hal bury' statement eem at odd with how judge actually write about previou cases.
Their language i frequently more di cur ive. In Dorset Yacht Co. v Home Office, Lord
Pearson stated that:
It i true that the Donoghue v tevenson principle [Lord Atkin's neighbour principle] as
tated in the pa age which ha been cited i a ba ic and general but not universal principle
72
Dav1es v ]ohnso11 [1979] A 264 at p. 344. The fact that there are now 38 Lord Ju tice of Appeal makes
univer al agreement on any major change of practice unlikely.
73
Other Judgment an the Hou e of Lords have al o upported thi view. Perhap the clearest i Lord Simon
of Glai dale' tatement that 'it i clear law that the Court of Appeal i bound . . . by a previous deci ion of the
Court of Appeal1t elf' (Miliangos v Frank (Textiles) Ltd [1976] AC 443 at p. 470) . However, in a later case.
AHorney-General v Reynolds, Lord almon tated that House of Lord deci ion about precedent in the Court
of Appeal were only of per ua ive authority ([1980] A 637 at p. 659). In National Westminster Bank plcY
pectrum Plus Ltd and other [2004] EWCA iv 570, Lord Phillips, citing the Hou e of Lord judgment 10
Davies v johnson, re tated the view that the Court of Appeal was bound by the rule laid down in Youngv Bristol
Aeroplane ompany.
74
ee Pater on ( 1982) at p. 152, where he ltsts other academic authoritie who do not accept this view. ee
al o ir Donald ichoUs, ' Keeping the Civil Law Up to Date: Flexibility and Certainty in the 1990 ' [199l]
Current Legal Problem I, for an example of continued judicial unea e about the re triction on the Court of
Appeal.
Per Lord Goddard C) in Police Authority for Huddersfield v Watsor~ [ 1947] KB 842 at p. 848.
5
' 85 Goodrich ha written that 'the primary ource of law [ ommon law] within the Engh h legal s tern 1
76
Per Lord Goddard C) in Pollee Authority for Huddersfield v Watson [ 194 7] KB 842 at p. 848.
n Qum v Leathem [190 I] A 459 at p. 506. For an example of the use of thi pa sage ee ro ( 1977) P· 59
and P. Atiyah, Pragmatism ar~d Theory in Er~glish Law ( 1987) teven , London, pp. 8-9.
ENGLISH LEGAL REASONING . CASE LAW 91
and does not in law apply to all the situations which are covered by the ide words of the pas-
age. To some extent the deci ion in this case must be a matter of impre sion and in tinctive
judgement as to what is fair and just. 78
Judge can be vague about the exact status of the precedent they are citing. In giving judg-
ment on behalf of the court in Hynds v Spillers- French Baking Ltd, Lord Thomp on aid
'[w]e agree broadly with the views expre sed ... in Newell v Gillingham Corporation'? 9 Is the
case cited a binding ratio or an obiter remark? We have noted in this chapter the difficultie
in a certaining precisely what a ratio is and how it is to be identified. Yet, judges rarely refer
to difficulties in locating the ratio of a ca e. Judgment are cited but their technical status
remains unstated. 80 Both these examples illustrate a broader use of pa t cases than just
referral to that which is binding. We have already noted the heavy u e of obiter remarks in
constructing judgments. Nothing in the above di cu sion of ratio, obiter, and the hierarchy
of the courts accounts for the way in which precedent is actually used. Traditional accounts
of precedent empha ize the orderliness of legal reasoning. We have already noted Hart's
description of a 'closed logical system: Yet, judge have frequently rejected the view that the
common law is either logical or, at lea t, 'strictly logical: 81 Finally, we need to take account
of the fact that patterns of legal linguistic usage are a] o affected by matters other than
the doctrine of precedent. In their study, 'After the Ancien Regime', Murphy and Rawling
offer an analysis of the way in which judgments in the House of Lords were constructed
in 1979.82 Their concern i with the way judgments in cases are 'glued' together; with 'the
equence and progression of the arguments deployed' and with other linguistic element in
the judgment which are not, in the trict sense, argument at all. 83 They how how particular
phrases (for example, 'ordinary natural meaning: 'common sense', and 'the ordinary man')
can be used to construct arguments which have a lawyerly feel even though the technique
have nothing to do with the traditional doctrine of precedent nor with formal logical rea-
soning. Similarly, two of the authors of this book have shown how the Chancery Division of
the High Court and the Family Division, which both have juri diction over the Inheritance
(Provision for Family and Dependant ) Act 1975, use very different metaphor and analo-
gies when constructing their judgments.84 To explain all these phenomena we need, there-
fore, to turn elsewhere to either supplement or replace traditional accounts of precedent.
The use of language
Much of the common law tradition is e sentially a written tradition. 5 Although judgment
are given orally, they are then written down. Argument is mainly oral but it i tho e written
78
Dorset Yacht Co. v Home Office [1970] AC 1004 at p. 1054.
79
Hynds v pillers-French Bakir~g Ltd [ 1974]IRLR 281 at p. 2 3.
so Indeed, u e of the We tLaw databa e sugge ts that the term ratio and ob1ter are u ed le . frequently
than one might expect given the centrality that they have in traditional accounts of legal rea ~mng. otmg
that omething is obiter appears to occur more frequently in judgment than analy I of the ratio of prev10u
deci ion . tiyah {19 7) p. 12.
82
Murphy and Rawling {1981); and (1982) 45 Modern Law Review 34.
83
Murphy and Rawling (1981) p. 617. .
8' F. ownie and A. Bradney, 'Divided Ju tice, Different oice : Inheritance and Famil Provi ion' (2003)
23 Legal tudie 566.
unwritten law' (P. Goodrich, Reading the Law ( 1986) Blackwell, Oxford, p. 40). Th1 i correct. Whether com-
mon law can now be aid to be unwritten in any helpful en e i le lear. Hi torically. re ord of a e were
98 CHAPTER 5
judgment that are reviewed when judge , lawyer , and ther want to know how the law
will de elop. It i tho e written judg.ment that are referred to when lawy~r are seeking
to con truct their argument . Theone of precedent are attempts to explam how there is
order in the way that lawyers read th i collection of written text , how they select tho e that
are important and tho e that are not important and how they read them in the same way.
However, in looking for rule to de cribe thi proce s lawyer may be looking in the wrong
direction or, at lea t, they may not be considering omething which is just as important as
whatever rule of precedent there may be.
e can ee an alternative to the traditional approach to precedent if we return to one of
thee entia! feature of any theory of precedent: the de ire to treat imilar cases in the same
fa hion and thu bring both certainty and con i tency to the law. Here, the basic que tion
i how do we decide that two ca e are or are not alike? Traditional theories approach this
que tion on the ba i that it i imply a matter of do e rea oning to ee what are and what
are not the ignificant and trivial a pect of the two ca e in i ue. However, we have een
that, in law, a in other di cipline , what make omething trivial or significant doe not
depend olely on lingui tic feature . Nothing i e entially significant or essentially trivial.
Meaning i ocially defi ned by the mall community of Engli h lawyers. Thinking like a
lawyer mean not arguing more rigorou ly than other but, literally, thinking in the way
that a lawyer would.
[T]he legal ignificance of the text doe not depend solely on the presence or absence of
recogni ably 'legal' word . It i not an under tanding of the words 'appellant' and 'respond-
ent' that eparate the legal reader' under tanding . . . from tho e of his or her non-legal
colleague . Rather it eem to be the ability to recogni e certain combinations of word ,
whether 'ordinary' or 'legal' a having orne ignificance other than that which is immedi-
ately apparent a their urface meaning.86
Prediction i achieved not ju t becau e the arne rules are followed but because of an ability
to empathize with tho e whose thought processes are being considered. One seeks to use
word and judgment in the way other English lawyer would u e them .87
everal writer have argued that, in con idering how thi social effect of language
occur , we need to con ider the influence of what they have called the legal canon in legal
rea oning:
(T]he decided case within any particular body of ub tantive law represent the equivalent
of a literary canon or . .. a pecific peech-community within which possible choices of the
court are trictly defined and limited by reference to legal criteria, by reference to rule ,
principles and value e tablished in previou ca e law.BB
A canon i an accepted body of literature which it i aid one hould know if one is to be
knowledgeable about a particular area . But a canon is more than simply a certain set of
books (or in theca e of a legal sy tern, judgment ). The works that constitute the canon
badly kept and were Little more than a brief pr ci of judgment . A late a the mid- eventeenth century, report
commonly took le than one page, even though they included the argument of cou nsel a well a the judgment
of the court. However, in the modern era, where fu ll report are commonly available and a iduously read, the
matter eem somewhat different.
86
Davie (1987) p. 415.
87
• Thi emphasis on the u e of language within a community corre pond to Wittgen tein' rejection of the
VJew that language had e entia! meamng and hi earch for a de cription of the way in which language were
u ed. See particularly L. Wittgen tein, Philosophical Investigations ( 1963) Ba il Blackwell, Oxford.
88
Goodrich ( 1986) p. 75.
ENGLISH LEGAL REASONING : CASE LAW 99
chosen for their alleged value; this value is, amongst other things, a matter of moral
are . . .
or political judgement. Works in the canon say somethmg about the pmt of the ystem. 89
However, ince the canon reflects values in the ystem, the selection of what i and what
· ot in the canon i in itself a value-laden act. The canon reflects and reinforce the poli-
t n . . 90
tic of those who constitute the commumty for whom 1t operates. ln the context of law,
this means that the influence of the canon on legal argument i itself not a value-free act.
Arguments which are not reflective of the value of the canon will find it harder to find a
purchase within the system. 91
The notion of the canon provides a framework within which the more traditional
accounts of ratio and obiter can work. It allows us to understand how legal arguments can
be acceptable even if they are not logical. 92 The idea of a canon help to explain how, on
the one hand, there can be the irresolvable problem in traditional accounts of precedent
and yet, on the other hand, there till be a reasonable degree of con i tency and certainty in
English legal rea oning. Social pressure upplement the principles ofEngli ~legal reas_o n-
ing to produce comparatively predictable outcomes to legal arguments. Th1. explanatiOn,
though, has consequences for our understanding of the nature ofleg~l reasonmg. If reaso~­
ing is in part ocial, in part about values, then who does the reasonmg matter . The soc1al
background of judges and lawyers will affect how they respond to, and help con truct, the
atmosphere that in turn creates the canon.
Conclusion
In Chapters 2 to 4 looking at the institutions that might be said to con titute 'the Engl~ h
legal ystem', we have emphasized their essential incoherence; the_fact that, far from bemg
a uniform set of bodie , they are divided in both form and functiOn . The account of legal
rea oning in this chapter might sugge t that here we have found something that could
account for the idea of'the Engli h legal system'. Legal rea oning, for all it difficultie and
ambiguitie , might be thought to be sufficiently coherent to constitute the unifying feature
for 'the English legal sy tern: , .
In our view, there i much merit in the sugge tion that the essence of the Engh h legal
y tern' lies not in it institutions but rather in the way it approache ~t argum~nt . _Many
writers would argue that the combination of rule , principle , and oClal constramt mher-
ent in legal reasoning is uch as to produce a closed sy tern, im~ervious t~ argumen~
fro m out ide.93 However, in our view, there are everal problem Wlth ugge tmg that th1
coherence in rea oning is ufficient to justify the idea of a dear and di tinct 'Engli h legal
y tern'. . .
First, the legal reasoning described in thi chapter i mo t typ1cally that kind of _rea on-
ing which goe on in court or in the writing of judgment . We have already empha tzed the
89 Thus, within Engh h literature, Lea vi argued for no els repr enting 'the grea.t traditiOn' of Engh h Lit -
erature ( . Leavi , 'The Great Tradition: George Eliot, Henry Jame , Jo eph Conrad (new edn, 1960) hatto
and Windus, London). ,
90 ee, for example, B. Doyle, 'The Hidden History of Engli h tudie ' and · Bel ey, Re-readmg the reat
Tradition' in P. Widdow on (eel), Re-Reading English ( 1982) Methuen, London. . . .
91 ee, for example, P. McAu lan , 'Admini trative Law, ollective onsumption and JudiCial Poh ,. ( 19 3)
46 Modern Law Review I.
92 ) . Belt, 'The Acceptability of Legal Argument ' in . Ma ormick and P. Birk (ed ), The Legal Mmd
( 1986) larendon Pre , xford, pp. 46- 64.
93 ee, in particular, . Teubner, Law as att Autopoetrc ystem ( 1993) Ba il Bla k\vell, xford.
100 CHAPTER 5

amount of legal activity that takes place outside the arena of the court. Law is not just the
court and it i not just judge . Of course, any other kind of legal activity takes place in the
light of the knowledge that the court may be the final place to resolve a dispute. This pos-
ibility of court action doe not ju tify us ignoring the other forms of reasoning used when
interviewing clients, negotiating ettlements, taking part in alternative dispute resolution,
or any of the other myriad activities associated with 'th e English legal system: Equally, it
does not ju tify us in treating a reasoning of 'the English legal system' only that reasoning
which i paradigmatically judicial. Second, even within the court not all those giving judg-
ment are involved in the kind of reasoning de cribed in this chapter. Two of the courts we
described in Chapter 3, the Court ofJustice of the European Union and the General Court,
have their own separate y tern oflegal reasoning. 94 Other courts within 'the English legal
y tern: and till more tribunals in that sy tern, have people making decisions who are not
trained in legal reasoning. 95 Since they cannot involve themselves in such reasoning, how
can legal reasoning be the signature of 'the English legal system'? Some courts and, once
again, still more, some tribunals, emphasize the fact that arguments need not be couched
in legal term .96 Again, this would eem to indicate that legal reasoning is not a necessary
feature of activity within the legal system. Finally, the legal reasoning described in this
chapter i what lawyers say they ought to do. Studies of co urts suggest it is not always what
judges actually do. In Lord Woolf' interim report on the civil justice system, he noted that
re earch that he had commis ioned howed that some judges:
saw it as their unequivocal duty to apply the principles of English law, while those at the
other end of the spectrum spoke of a wider responsibility to 'do justice' even if that meant
di regarding the trict requirements of law and adopting a more common sense approach
in some case .97

This finding replicates many previous tudies. 98 The empirical evidence suggests that we
cannot simply assume that lawyers or, indeed, judges do, in fact, always pay heed to the
apparent constraints on the way in which they reach decisions. In all these circumstances,
it would be an exaggeration to uggest that English legal reasoning unites all the things that
might be said to constitute 'the English legal system'.

Further reading

CRo s, R. and HARRIS,) ., Precedent in English KELMAN, N., 'Trashing' (1984) 36 Stanford
Law (1991) Clarendon Press, Oxford. Law Review 293.

9
~ On this, see ). Benoetvea, The Legal Reasoning of the European Court of justice: Towards a European
jtmsprudence (1993) Clarendon Press, Oxford.
: Th.e ~ost obvious example are lay magistrates and tribunal wing-people.
Wd lthm the court system, the mo t obviou example i the small claims track under Part 27 of the Civil
Prace ure Rules 1998.
"' Lord Woolf Access to justice· 1 t · R
d W. ( ' · n enm eport to the Lord Chancellor on the Civil justice System in England
an a1es 1995) Lord Chancellor's Department, London, p. 109.
98
See, for example, W. Barrington Baker, ). Eekelaar, C. Gibson, and . Raike , T!te Matrimonial jurisdiction
of Regtstrars ( 1977) Centre for Socia-Legal tudies, Oxford.