The Status of Rules of Precedent

Author(s): P. J. Evans
Source: The Cambridge Law Journal , Apr., 1982, Vol. 41, No. 1 (Apr., 1982), pp. 162-179
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal

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Cambridge Law Journal, 41 (1), April 1982, pp. 162-179
Printed in Great Britain.

THE STATUS OF RULES OF PRECEDENT

P. J. Evans*

In a recent article in the Cambridge Law Journal,1 Laurenc

stein argues that four problems of legal theory which are
to present elements of paradox are capable of a reasonably
solution. I am interested here in only one of the problems d
by Goldstein: that concerning the status of the rules of pr
I agree with Goldstein that this problem has a reasonabl
solution: but I disagree with the solution he proposes. (Broa
is that pronouncements on precedent do not establish rules
I propose in this short article to offer what I believe to be a
solution to this problem. The solution proposed is one w
already been suggested by A. W. B. Simpson in 1961 in " Th
Decidendi of a Case and the Doctrine of Binding Precedent"
there is, I believe, a defect in Simpson's formulation of the a
for it, which has impeded its general acceptance. In any ev
there is clearly still controversy about the issue, it seems wo
restating this solution with fresh arguments. I will first di
problem, then its proposed solution, then Simpson's discus
the topic, and finally some further questions which are su
by the proposed solution.

J. The Problem

As it seems to me, the problem which puzzles us about the sta

of rules of precedent is that of reconciling three apparently irr
cilable propositions, each of which seems to have good clai
support. The three propositions are:
(1) That rules of precedent are ordinary rules of law wh
impose duties identical to those imposed by any other d
imposing rules of law.
(2) That the authority of the rules of precedent cannot res
the rules of precedent themselves.
(3) That rules of precedent can be changed.

* Senior Lecturer, Faculty of Law, University of Auckland.

1 " Four Alleged Paradoxes in Legal Reasoning " [1979] C.L.J. 373.
2 Oxford Essays in Jurisprudence, ed. Guest (1961), p. 148.
162

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C.L.J.. Status of Rules of Precedent 163

Most discussions of this problem end up abandon

position 1 or proposition 3.3 The solution I will offe
of reconciling all three propositions. First, though,
case for each of the three propositions:

(a) Proposition 1
According to a view quite commonly put, rules o
not rules at all, but are simply " statements of jud
tradition."4 The implausibility of this view can be
we distinguish sharply between three different thi
might be doing in making pronouncements about
might be:
(i) making historical observations about what
practice is;
(ii) stating the effect of a rule which they believe already exists;
or

(iii) Iaying down (or participating in Iaying down) a rule which

is to apply in the future.

It may sometimes be unclear which of (ii) or (iii) judges believ

themselves to be doing in making such pronouncements, but it is
perfectly clear they do not consider themselves to be doing (i). Co
sider the following from Lord Halsbury in London Tramways Co.
Ltd. v. London County Council5:
My Lords, for my own part I am prepared to say that I adhere
in terms to what has been said by Lord Campbell and assente
to by Lord Wensleydale, Lord Cranworth, Lord Chelmsford
and others, that a decision of this House once given upon
point of law is conclusive upon this House afterwards, and tha
it is impossible to raise that question again as if it was re
integra and could be reargued, and so the House be asked t
reverse its own decision. That is a principle which has been, I
believe, without any real decision to the contrary, established
now for some centuries, and I am therefore of opinion that i

Thus, the following present views which involve abandoning proposition 1

Glanville Williams in Salmond on Jurisprudence (11th ed. 1957), pp. 187-188;
Hicks, "The Liar Paradox in Legal Reasoning" [1971] C.L.J. 275, 290; Lord
Denning in Davis v. Johnson [1978] 1 All E.R. 841, 855; Goldstein, supra,
n. 1 at p. 387. Goldstein does not, however, agree with the others that pro-
nouncements on precedent are mere statements of practice. He takes the view
that they are logically incoherent utterances. C E. F. Rickett in " Precedent in
the Court of Appeal" (1980) M.L.R. 136, 144, puts explicitly the view that
changes in the rules of precedent are revolutionary changes (a rejection of pro¬
position 3), though he suggests that in practice such changes will normally occur
very slowly. The views expressed by Roy L. Stone-de Montpensier in " Logic and
Law: The Precedence of Precedents" (1967) 51 Minnesota L.R. 655, perhaps
involve an attempt to reject proposition 2 (see also [1968] C.L.J. 35).
e.g. Glanville Williams, supra, n. 3.
[1898] A.C. 375,379.
C.L.J.—6 (2)

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164 The Cambridge Imw Journal [1982]

this case it is not competent for us to rehea

to reargue a question which has been recent
Or this, from Lord Greene in Young v. Bristol A
On a careful examination of the whole matter we have come
to the clear conclusion that this court is bound to follow pre
vious decisions of its own as well as those of courts of co-
ordinate jurisdiction. The only exceptions to this rule (two o
them apparent only) are those already mentioned_
Or this, from Lord Goddard in R v. Taylor7:
This Court [the Court of Criminal Appeal]... has to deal w
questions involving the liberty of the subject, and if it finds,
reconsideration, that, in the opinion of a full court assembl
for that purpose, the lavy has been either misapplied or mis
understood in a decision which it has previously given, and th
on the strength of that decision, an accused person has be
sentenced and imprisoned it is the bounden duty of the cou
to reconsider the earlier decision with a view to seeing wheth
that person has been properly convicted.

The first two of these passages seem to belong under category (

above; the third passage might also be thought of as belonging un
(ii) if we interpret what is being said as the assertion of a rule wh
forms part of the law because of its merit; but it might also
treated as belonging under (iii). None of the passages belong und
(i). It is worth noting also that in so far as the judges believe the
selves to be doing (ii) (stating the effect of an existing rule), th
plainly believe that they are doing so in circumstances under whi
even if they are wrong, the effect of what they do will be to lea
behind a rule for the future. Doing (ii) and (iii) thus share t
feature that they leave a rule for the future. So the view that sta
ments about precedent are merely statements about judiciai pract
or tradition is clearly wrong as a statement about what judg
purport to do—they at least purport to be doing things which ha
the effect of leaving rules for the future.
It remains possible that judges are not doing what they purp
to be doing, so that only interest of what they do is as an histor
indication of the outlook of the time. There is, however, go
reason to believe that judges are doing what they purport to
doing, at least to the extent that they purport to be leaving behi
rules for the future. The crucial point is that later judges, a
lawyers generally, treat the " rules of precedent" as rules. When
judge finds himself bound by a precedent he treats himself as obli

• [1944] K.B. 718, 729.

7 [1950] 2 K.B. 368, 371.

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C.L.J. Status of Rules of Precedent 165

to decide as the precedent requires, irrespective o

is a different approach from that which would be
were just an historical fact that judges generally fo
If that were the situation it would still be import
consider precedents, because whatever might be th
of an issue there would be important values to
following an earlier precedent, since people would r
because of the judges' practice. But under such a ci
values would have to be weighed against the disadva
ing the precedent. If the deficiencies of the preced
tial, or the chance of anyone relying on it in decid
of action were siight, then it might be best, all thi
refuse to follow it. Whatever might be the merit
treating precedents, it is not the method which we
As things presently are, we argue about whethe
applicable, and about whether they are binding und
rules of precedent, but because we accept these ru
do not argue about whether precedents should be f
they are applicable and of the right character to
the rules.

Another version of the theory that rules of pr

ordinary rules of law, which may seem more attr
of these considerations, is that rules of precedent
of practice.8 The trouble with this claim is that it
what is meant by " rules of practice." Presumably t
is to practice directions on matters such as the for
or the manner of taking preliminary steps in a tr
myself, see why these rules should not be called o
law. Perhaps they are always subject to some over
in the court to dispense with the requirement the
that is so I would be inclined to call them rules
cretion. It doesn't matter, however, for the presen
characterise these rules. Whatever may be true of
shown clearly that rules of precedent are just as m
as any other rules of the legal system. To facilitat
to this effect let me make a broad division betwe
types of rules which follow from a proper respect

8 The view that rules of precedent are rules of practice wa

in the first edition of Precedent in English Law (1961), p
Rickett in " Precedent in the Court of Appeal " (1980) M.
rules of precedent as " rules of practice," because they are p
recognition of the system. For reasons given in the text,
are part of the rule of recognition, but in any event (again
tho text) I would not consider this a good reason for treatin
other than full rules of law.

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166 The Cambridge Law Journal [1982]

First, we should allow for rules which are binding e

are not binding because of the rules of precedent. I hav
particularly rules which constitute a proper extension o
existing case9; but there is in fact an even clearer in
rules which were laid down by a lower court or an e
court not bound by its own decision, but which should
followed not just, or not at all, because of their m
important legal values such as protection of existing pr
dence in the stability of the law, are protected by thei
This leaves the broad class of rules which are bindin
rules of precedent. Among these we can distingu
would be binding in any event—because they woul
constitute the proper extension of another preceden
are non-binding cases which would justify adheren
cause the precedent establishing them merely corre
or applied an existing rule, or just because the
sound principle—and those which would not be
were not for these rules. We have, then, rules whi
only for reasons other than the rules of precedent,
binding for such reasons as well as because of the ru
and rules which are binding only because of the rul
For the moment let us concentrate on the third class. If we take
away from the rules of precedent the status of ordinary rules of l
then we must take it away also from all these more particular rul
by which judges are bound just because of the rules of precedent
The duties which judges have to observe these more particular rul
can not be of a different type from the duties imposed by the rul
of precedent since they are simply particular instances of this ver
duty: it is because, and only because, of the duty to follow the ru
of precedent that there is a duty to follow these more particula
rules. But there seems no good reason to treat these duties as dif
ferent in regard to their character as legal duties from duties imposed
by either of the other two classes of rules derived from cases, o
indeed any other rules of the system. Certainly the ground on wh
we recognise them to be legal duties is different, but this does n
constitute a difference in what we recognise them to be. They a
legal duties like any other legal duties—they form part of the syst
of requirements which go to make up a particular legal system. L

9 My belief that there are such rules is based on the view that judges are som
times bound, though not by the rules of precedent, to extend the ratio of
case beyond its expressed terms. This is argued more fully in a paper " On ca
law Reasoning " which I hope to publish shortly.
10 For discussion of these cases see; Jones v. Secretary of State [1972] A.C. 9
Knuller Ltd. v. D.P.P. [1972] A.C, 435; Cassell & Co. Ltd. v. Broome [1972]
A.C. 1027, per Lord Reid at 1086E.

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C.L.J. Status of Rules of Precedent 167

us now consider the second class of rules—those

because of the rules of precedent as well as fo
is clear that a similar point can be made. In their
which are binding because of the rules of pre
impose duties which are just as fully legal dutie
by any other rules of the system. In both cases
function of the rules of precedent is to give rise
duties of law. We can conclude, then, that the f
sound.

(b) Proposition 2 (That the authority of the rules

not rest on the rules of precedent themselves
This proposition, which has been forcefully s
Williams,11 seems to me to need no supporti
proposition, it should be noted, as put here, i
precedent cannot be established by precedent dec
the authority of such precedents cannot rest
precedent themselves.

(c) Proposition 3 (That rules of precedent can be

At the present time it is a simple matter of
tion that the rules of precedent have been chang
occasions during the last century or so.
When Lord Halsbury stated in JLondon Tram
London County Council12 that the rule (or " prin
it) that the House of Lords is bound by its own
been established for some centuries, he seem
historically accurate. It would not, I think, be c
this rule was established by that case itself, but
to claim that it was first recognised by a court
v. Beamish.13 There appears to be no case pri
which the rule was asserted by the House; and i
have been universally accepted before that time
v. Hutton 14 there was disagreement between Lo

11 Supra, n. 2.
12 Supra, n. 5.
w (1859-61) 9 H.L.C 274.
14 (1852) 3 H.L.C. 341. It seems to me that in Bright v. Hutton the House did
in fact refuse to follow its earlier decision in Hutton v. Upfilt (1850) 2 H.L.C.
674; though it did not do so in so many words. In UpfilVs case it had been held
that a member of a provisional committee of a company who had accepted shares
alfotted to him was liable as a contributory on a windfog up of the company,
because these facts established a contract to be liable for expenses of the manage¬
ment committee in promoting the company. In Bright v. Hutton it was held on
facts admitted to be indistinguishable, that there was no contract, and hence no
liability as a contributory. The lords who spoke, treated UpfiWs case as a
decision on fact, and hence as not binding. Strictly, the finding in UpfilVs case

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168 The Cambridge Law Journal [1982]

Lord Chancellor) and Lord Campbeli15 as to whether t

bound by such a rule. Lord Campbeli, who believed it
did not cite any authority for his view, but argued (i
such a rule followed from sound constitutional theory
Campbeli reasserted this view as Lord Chancellor
General v. Dean and Canons of Windsor9u in 1860, Lor
expressly reserved his opinion on the point.lf In
Beamish l8 however, Lord Campbeli won the day. W
first came before the House in 1859, the House direet
be argued on the assumption that R. v. Millisie (the re
decision) was a binding authority if applicable; and wh
gave its decision in 1861 each of the Lords asserted tha
not they approved of R. y. Millis they were bound by
Now it is, of course, possible that Lord Campbeli was r
the points on which his argument depends: (i) that
the House is bound by its own decisions follows from s
tutional theory, and (ii) that it was therefore part of t
it was recognised by the House. But Lord Campbell's a
the first point, though weighty, is not beyond challen
since the ratio of a House of Lords decision is binding
tribunals and on all the rest of the Queen's subjects, i
considered equally binding on the House itself, the Ho
arrogating to itself the right of altering the law and w
legislating by its own authority. Strictly, this is not just a
based on constitutional theory, but also on a view abo
use of cases as a source of law. It requires as a premise
tion that single decisions, irrespective of merits, are
authoritative source of law for lower courts. The argu
that if such decisions are not an authoritative source of law for the
court which made them, the law which binds lower courts is not
binding on higher courts. Lord Campbeli believed (reasonably
enough) that one body of law should be binding on all courts, and
he therefore concluded that higher courts should be bound by their

was not about what the facts were, or about the existence of a rule (the rule
that if there was a contract authorising expenses there was liability as a contri¬
butory was accepted in both cases), but about whether the agreed facts couid
be ciassified in a certain way so as to come within an agreed rule. (Such con¬
ceptual questions are often misleadingly spoken of as " mixed questions of law
and fact.") If findings on questions of this sort are not binding, so that the
only findings which bind courts are those about the existence of rules of law,
then there are a tremendous range of precedents normally assumed to be binding
which are not.
15 At pp. 388 and 392 respectively.
*• (1860) 8 H.L.C. 369, 391.
17 At. p. 459.
18 Supra, n. 14.
« (1844) 10 Q, & F. 534.

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C.L.J. Status of Rules af Precedent 169

own decisions. It should be noted, however, th

even if accepted, can at best only mitigate, an
evil complained of. Whenever it is true that si
authoritative source of law and there are more than two tiers in
the structure of courts, it is inevitable that there will be decision
which are binding on some courts and not on others. For the lowest
tier of courts is bound by the second tier, and even if the second
tier is bound by its own decisions these decisions will not be binding
on the third tier. Since the evil is thus an inherent feature of the
conception that single decisions are binding on lower courts
long as there are more than two tiers of courts) we might reasona
judge it better to forgo that mitigation of the evil which can b
achieved by making higher courts bound by their own decisions
the advantages of leaving the higher courts free in a wider ran
of cases to reconsider unsatisfactory precedents. Still, even if L
Campbell was right on this point, so that the view that the Hou
of Lords is bound by its own decisions was a proper consequence
the view that single decisions, irrespective of their merits, are bindin
on lower courts, and even if one is willing to accept (as I would
willing to) that it therefore formed part of the law from the accept
ance of this conception, it cannot have ante-dated that concepti
and it seems plausible to claim this was a nineteenth-century develop
ment.20 So even if he was right on both points that only pushes b
a little the origin of the rule that the House of Lords is bound
its own decisions, and makes the time of its origin more vague
As is well known, the rule thus established in the nineteenth
century was abandoned in 1966, and the House has since acted o
the view that it is not bound by its own previous decisions.21 On
point, then, the rules of precedent have changed twice within
space of around 150 years.
Somewhat similar points can be made about the rule that

20 On this see C. K. AUen, Law in the Making, 7th ed. (1964), pp. 210 et
Goodhart, "Precedent in English and Continental Law*' (1934) 50 L.Q.R.
"Case Law: a Short Replication" ibid. 196; Holdsworth, "Case Law" (193
50 L.Q.R. 180, "Precedents in the Eighteenth Century" (1935) 51 L.Q.R. 44
C. K. Alien, "Case Law: an Unwarrantable Intervention" (1935) 51 L.Q.
333; Lord Wright, "Precedents" [1943] C.L.J. 1. A clear sense of the early 19
century position can be derived from Ram, The Science of Legal Judgm
(1834), Chaps. 14 and 18. That rules of precedent may sometimes requi
lower court to adhere to something which is not the law so far as citizens ar
concerned (if we take it the law for citizens is the law which should be appl
by the highest court) is clearly recognised by Stephens J. in Viro v. The Qu
18 A.L.R. 257 at 289-335. I do not accept what the learned judge there se
to suggest, that there must be a " sanction " (of possible reversal) to supp
rules of precedent. (Cf. Jenkins, Correspondence (1981) 1 Legal Studies 340
is inconsistent with the judge's own view that a final court may bind itself
follow its own decisions. Ibid., p. 290.
21 E.g., in Miliangos v. George Frank (Textiles) Ltd. [1976] A.C. 443.

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 170 The Cambridge Law Journal [1982]

Court of Appeal is bound by its own previous dec

from the time of the establishment of the modern
by the Judicature Act in 1873, there is a period l
1890s in which the court does not seem to have t
approach to its own earlier decisions, or those of
In 1880, in Mills v. Jennings22 the court departed
of the old Court of Appeal in Chancery stating th
were not uncommon in that court itself. In the Vera Cruz No. 223
in 1884 the court declined to follow one of its own previous decisions
where the decision merely affirmed the decision in the court below
because the Court of Appeal was equally divided. Brett M.R. expres¬
sed the view that the comity among judges which is the ground of
the rule that a court should follow its own previous decisions, or
those of a court of co-ordinate jurisdiction, did not apply in such a
case. In 1886 Lord Esher (as Brett M.R. then was) called together
the full court in Ex parte Stanford24 to review a rule of construction
previously laid down in several decisions as to the meaning of the
term "in accordance with the form" in section 9 of the Bills of
Sale Act 1882 which made bills of sale not ** in accordance with th
form " void. At least one of those earlier decisions, Roberts v
Roberts,25 was a decision of the Court of Appeal and it is clear t
new rule laid down differed from the rule followed in that case. The
course of action taken is explained and justified by Lord Esher in
Kelly & Co. v. Kellond.2* In later discussion of this topic that case
itself was mistakenly thought to be a case in which the full court
had been called to reconsider an earlier decision27; but when in
that case Lord Esher says28:
This Court is one composed of six members and if at any time
a decision of a lesser number is called in question, and a diffi¬
culty arises about the accuracy of it, I think this Court is
entitled, sitting as a full Court, to decide whether we will follow
or not the decision arrived at by the smaller number.
he plainly means by " This Court," not the court presently sitting,
but the whole permanent composition of the Court of Appeal at
that time. He is thus explaining why the court presently sitting is
bound by the rule laid down in Ex parte Stanford (it is bound because
the full court had power to overrule Roberts v. Roberts); and is not
describing the course being taken in the current case. In fact the

22 (1880) 13 Ch.D. 639. 23 (18g4) 9 PJD# 96.

24 (1886) 17 Q.B.D. 259.
25 (1884) 13 Q.B.D. 794.
26 (1888) 20 Q.B.D. 569,571.
27 See, e.g.t Lord Greene in Young v. Bristol Aeroptane Co. Ltd. [1944] K.B.
718, 727.
28 ibid., at p. 572.

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C.L.J. Status of Rules of Precedent 171

court in Kelly & Co. v. Kellond was not a full

only three members. During the 1890s a more r
to have emerged. In Pledge v. Carr,29 in 1895
refused to consider overruling an earlier decisio
Appeal in Chancery because it was a decision
ordinate jurisdiction; and in the same year, i
County Council,30 Lindley L.J. expressed the view
strictly bound by an earlier decision of the Cou
In 1903 the procedure of calling together a full c
more to reverse an earlier decision of a court of a lesser number 31;
but this was the last time. The general hardening of attitude then
proceeded. Two cases in 1914 and 1915 respectively Velazquez Ltd.
v. Inland Revenue Commissioners32 and Produce Brokers Co. Ltd.
v. Olympia Oil & Coke Co. Ltd.33 show clearly that courts of a
single division at that time were not willing to reconsider earlier
decisions, irrespective of the merits of those decisions. At this point
one might have thought the question was settled with regard to a
single division; but in 1929,34 and in 1938,35 Greer L.J. relied upon
the cases in which a full court had reversed a decision of a single
division to argue that what a full court could do, a single division
could do, there being no difference in jurisdiction between the two.
Finally, in Young v. Bristol Aeroplane Co. Ltd., in 1944,36 Lord
Greene, giving the judgment of the court, used Greer L.J.'s argu¬
ment in reverse, to assert that since a single division could not
reverse an earlier decision neither could a full court. As a summary
of this, it seems reasonable to say that the rule that a single division
could not reverse an earlier decision was established probably as
early as 1895, and certainly by 1914, and the rule that a full court
cannot do so, was established by YoungJs case itself in 1944.
The uniform rule thus settled in Young's case has not, of course,
been changed up to the present time. But it seems fair to assert
that it could be—though whether the power to make such a chang
lies with the Court of Appeal itself, or with the House of Lords, or
both, is a question which is at present not entirely clear.37

29 [1895] 1 Ch. 51. 30 [1895] 2 Q.B.D. 577.

si Wynne-Finch v. Chaytor [1903] 2 Ch. 475. 32 [1914] 3 K.B. 458.
33 [1915] 21 Com.Cas. 320.
34 Newsholme Bros. v. Road Transport & General Insurance Co. [1929] 2 K.B.
356, 384.
35 In re Shoesmith [1938] 2 K.B. 637, 644. 36 [1944] k.B. 718.
37 On this point see the following passages in Davis v. Johnson [1979] A.C
and further cases cited therein: Lord Denning M.R. at pp. 281 et seq.', G
L.J. pp. 293G-295F; Cumming-Bruce L.J. at pp. 311G; Viscount Dilhorne
336F; Lord Salmon at p. 344A-F;also Attorney-General v. Reynolds [1
A.C. 637, 659F. See also Cross " The House of Lords and the Rules of Prec
dent." In Law. Morality and Society: Essays in Honour of H. L. A. Har
Hacker and Raz (1977), pp. 145, 151-153.

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172 The Cambridge Law Journal [1982]

It is plain, then, that the rules have been chan

of occasions in the past. This in itself does not sh
be changed legally9 for it might be that the jud
number of silent revolutions. We must consider,
these changes were legally made.
If one Iooks back at the changes two things ar
apart from the declaration in 1966, the judges d
be exercising a power to change the rules. They
they were upholding a tradition which had stoo
Lord Halsbury in London Tramways Ltd. v. London County
Council) or as if they were recognising rules which had to be recog¬
nised because they were grounded in sound argument (Lord Camp¬
beli in Bright v. Hutton, and Lord Goddard in R. v. Taylor). The
judges did not apparently see themselves as free to make change.
But the second thing which is striking is that the judges clearly did
believe themselves to be able to settle these issues, and since being
able to settle an issue implies being able to settle it wrongly as well
as rightly, if their belief was correct they did in fact have the power
to make change. The correct way, it seems, to state the position in
which the judges believed themselves to be is that they possessed a
power to make change—as an incident of the power to settle issues
concerning the rules—but that they had a duty not to exercise this
power—since their duty was simply to recognise pre-existing rules.
Can we now move from this analysis of the judges* belief to a
statement about what was the law? It seems to me we can. The
view the judges held was plainly not idiosyncratic, but was share
by other judges and by the legal profession as a whole. That
evidenced by the willingness of later judges and lawyers to treat
these decisions as decisive on the points they purported to settle
Now unless all these people were incorrectly drawing conclusions
from some more basic premises—which seems implausible—then t
state in which the judges believed was in fact the law.
If then, all of these propositions are sound our next task mus
be to try to reconcile them.

II. The Suggested Solution

A reconciliation between propositions 1 and 2 can be achiev

treating rules of precedent as basic rules—as part of the grun
or rule of recognition of the legal system. The position woul
be that the authority of rules of precedent would not depend
precedents or any other source of authority, but merely upon
acceptance as part of the ultimate source of authority of the
system. This solution is blocked, however, by proposition 3,

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C.L.I. Status of Rules of Precedent 173

a rule of recognition cannot be changed. As th

of a system is the ultimate test of legal validity
if a different rule of recognition is asserted there
by virtue of which it is valid. Vis-a-vis the old
it must be invalid. Thus any change of a rule o
be revolutionary.
The way to reconcile propositions 1 and 2 wi
to postulate as the relevant part of the rule of
rules of precedent themselves, but a rule which
justifies as a particular conclusion, that the jud
to time settle the rules of precedent. Such a
judges power to make rules of precedent wh
binding until such time as these rules were chan
of course, a question of detail just which judge
regard to each particular aspect of the rules.
If this view of the rules of precedent is correct
that the judges of at least the highest court can
on themselves which they are also free at any t
may seem disturbing, but it is not such an odd
appear. Even a single individual can make rules
he is at any time free to change. If I make a ru
6.30 every morning and do my exercises, then i
to abandon this rule, and quite another for me
it on a particular occasion. In any event, sinc
court must act as a body to make changes in th
it makes perfectly good sense to say that the
make a rule which is binding on each individ
change is made by a further collective decision
This then is the solution which I propose to
status of rules of precedent. They are rules mad
of a more basic rule.

III. Simpson's Argument for this Solution

As I have said, essentially this solution to the problem was proposed

by A. W. B. Simpson in 1961.38 I now turn to consider Simpson's
arguments.
Simpson argues (correctly in my view) that it only makes sense
to say that the House of Lords can put itself under an obligation
to obey its own decisions if one assumes that there is a rule which
gives the House this power. Unfortunately, however, he treats the
possibility of such a rule as a valid argument against Glanville

38 " The Ratio Decidendi of a Case and the Doctrine of Binding Precedent,"
supra, n. 2.

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174 The Cambridge Law Journal [1982]

Williams's claim that the rules of precedent canno

own authority. It is not: though it is a good argum
conclusion which Glanville Williams draws from th
decisions on precedent cannot establish rules of law
The relevant passage in Simpson's article is the f
Now the most usual reason for citing the Lon
case is to justify an argument about a specific c
for example, that the House is bound by the dec
v. Fletcher. In such an instance there is no circ
method of justification. It is only when the
justify an argument that London Tramways
County Council is binding that Dr. Williams find
tion circular. But are those who use such an arg
accused of circularity or question-begging? The
be set out thus:
(1) The House of Lords has power to make rulings about
the status of its own decisions, whether they are binding
or not.
(2) In London Tramways Ltd. v. London County Council
the House in exercise of this power ruled that all its
own decisions, unless given per incuriam or in ignorance
of a Statute, are binding.
(3) The decision in London Tramways is a decision of the
House of Lords and is therefore binding.
The argument does not assume what it seeks to prove; it assumes
that the House has a power to rule whether its decisions are
binding or not binding, and proves that they are binding.
Given that the reasoning set out is intended to refute Glanville
Williams, one might take (3) here to mean that the decision in
London Tramways, on the point of precedent, is binding because
of the decision in that very case (Le., because of the decision referred
to in (2) ). This reasoning would clearly be circular. But this is not,
I think, what Simpson means. What I take it he means by (3) is
that the decision in London Tramways is binding because it consti¬
tutes an exercise of the power referred to in (1). On this interpreta¬
tion, the reasoning is not circular, but perfectly valid. An exercise
of the power referred to in (1) must be taken, of course, to apply
only de futuro; so that there can be no suggestion that the House,
by ruling that its own decisions are not binding, can make it the case
that its decisions were not binding at a time when a contrary ruling
prevailed. (This, I believe, removes the element of self-contradiction
which Goldstein, in the article I mentioned at the outset,40 claims

39 At p. 152. I have changed the name of the appellant in the quotation from
London Street Tramways Ltd. to London Tramways Ltd., taking account of the
errata at the front of (1898) A.C.
<° Supra, n. 1 at p. 389,

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C.LJ. Status of Rules of Precedent 175

to see in this reasoning.) It ought also to be c

referred to in (1) does not give the House powe
of this very power by ruling that some decisio
has this power is not binding. Since that decisi
been the source of the power, a ruling stating
not binding would not affect the power.41 If,
reasoning is interpreted in this way, it cannot b
argument against Glanville Williams. What Sim
if one accepts the existence of a rule of higher
of precedent, the London Tramways' case could
cited as an authority for the rule that the Hou
own previous decisions because the decision in it
cise of the power given by that higher-order ru
that the case could be cited as an authority for
because of that very rule itself. Since it is only
that Glanville Williams's complaint is addressed,
this complaint unaffected. Glanville Williams wa
that rules of precedent cannot rest on their ow
simply wrong (for reasons indicated by Simpso
clusion from this that decisions about precedent
of law.

IV. Some Problems Raised by this Solution

I will now discuss two problems which are rais
The first is this. If we say that at a time in hist
than 1966 the courts were under a duty not to
precedent (which, as we have seen, was assumed
that time), then what are we to say of the House
in that year of a freedom to change the rules cons
that this at least was a revolutionary change? The a
this seems strong. If this duty formed part of the
then plainly it could not legally be changed. Fu
might posit (though not very plausibly) a basic r
this duty so far as the House of Lords was conce
itself explicitly proclaimed that it was free fro
explicit act occurred. All that we are left with if w
path is the notion of a duty which disappears
observed—and that makes no sense.
I do not think, however, that this conclusion

41 If the court did have this power the basic rule woul
justified a conclusion that the court can determine wha
are until it itself deprives itself of this power. The reas
clearly m relation to a similar problem by Alf Ross in *
a Puzzle in Constitution Law " (1969) 78 Mind 1.

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176 The Cambridge Law Journal [1982]

the premises necessary to avoid it are of an interes

I contend is that the basic commitment in the com
as the use of cases as a source of law is concerned,
just to a specific set of rules but has always includ
residual element, a commitment to that solution o
best promotes the common good. I shall here use an
and refer to this as the solution which reason requ
is to be plausible it is important that I should be c
cisely what is being claimed. First, I do not clai
criterion of validity for propositions based on case
unchanged through the whole history of the law. It
it has changed from time to time. All I claim is th
basic commitment has been at any given time it has alw
least a commitment to the solution reason require
concerning what the criterion should be: that i
questions of evaluation not settled in that part of t
previously accepted as settled. Secondly, I do not c
present time this is the only ultimate criterion of
is, I think, a settled part to the doctrine of prece
sently have it which is immune from legal challeng
of its reasonableness. This is the rule that, loosely
single decisions of higher courts are binding on
taken, that is, as a rule which applies at least unti
changed by a ruling of the highest court. It is pos
that rule first entered the law its claim to recogni
to depend on its reasonableness. In fact I do not th
but that it entered through a nineteenth-century m
of the earlier law. But even if it was so, it seems p
has not been so conceived for well over 100 years.
the responsibilities of a present-day judge, it is not
legitimate to go back to early stages of legal histo
establish that there are conflicts within the tradition about the basic
commitment of a judge, and then to suggest that a judge may choose
between these conflicting conceptions. The whole point of a com¬
mitment to a past system, which is to ensure uniformity and con-
stancy in judgment, suggests that if there are conflicts of this sort
within the tradition it is the more recent part of it which must
prevail. The common law assumption for upward of 100 years, I
contend, has been that the responsibility of a judge to follow deci¬
sions of higher courts is simply a basic premise of the system. So
even if it can be argued, as I think it can, that reason requires that
any single judge should observe this rule while a general commit¬
ment to it remains, it is not as resting on that premise that it

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C.L.J. Status of Rules of Precedent \11

presently forms part of the law. But on novel point

there can in fact be conscious change of this ru
that the basic commitment in the common law
which reason requires. Thirdly, I do not claim t
legal validity has the same degree of explicit re
the rule that lower courts are bound by decision
What I claim is simply that this basis is assumed
arise, and that it is understood to be in accordanc
that it should be.
Let us turn now to the problem of the 1966 d
claim I have made is correct, then the follow
given of the changes discussed in this article. We
time, whenever it occurred, that it became gen
single decisions of higher courts were bindin
irrespective of merits. Once that was accepted,
necessary to work out the implications of this f
relation to their own previous decisions. Obviou
that judges should be able to rule on this, and o
tentious issues regarding the rules which should
those rulings once made should be accepted. Bec
able, it formed part of the law that those ruling
but once such rulings had been made an unus
for there could be no correcting of these rulin
sense. Though one might say at a later time tha
got things wrong, the law after their decision
they ruled it to be. So if later judges were limi
the law was at their time, then, apart from the
lative change, the system would be locked irreve
of things brought about by these rulings. Since
be an unsatisfactory state, what reason seem
that there should then arise a liberty to change t
Two objections, however, might possibly be mad
conclusion concedes a freedom in the judges
whereas it is by tradition felt that their role is
and secondly, the concession of such a freedom
claimed, against the concept of parliamentary s
first objection, my answer is that it remains de
liberty even though it can not be denied that
change the law. In these unusual circumstances,
there should be such a liberty. On the second, it is t
of parliamentary sovereignty is taken to imply
powers within the state to change the law ex
delegated by parliament, it is misconceived. Ther

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 178 The Cambridge Law Journal [1982]

other powers—the prerogative powers, for instance

power of the courts to control their procedure. Pa
ride or take away these powers, but if the prop
of our basic premises justifies the existence of a p
pertinently here, the liberty to exercise a power, then
parliament removes it. If, then, this argument is co
ful under the pre-existing law for the House of L
change which it did in 1966.
The second problem is this. I have spoken so far
having power to alter the rules of precedent, b
imprecise notion: how do we decide, on points
judges have this power in regard to any particu
they must act to exercise it? The general answer
should be clear from what I have just said: on poi
we must look to the answer which reason requires,
this to which our tradition commits us. On the
question, how the power must be exercised, the an
also relatively simple. There is no established conv
judges change the rules of precedent they must fol
form, and there seems no reason why there should be
So long as the court acts by a majority it seems
clearly indicating its intent should be effective, w
is expressed in the course of a case or not, and wh
forms part of the ratio decidendi of a case. (It ma
desirable, as the House of Lords seems to have f
to avoid impact on the parties to a dispute it shoul
of a case.) But the question who possesses the pow
particularly with regard to lower courts. I will con
to one problem: does the authority to change the r
of Appeal is bound by its own decisions belong
Court of Appeal itself, to the House of Lords, or t
If we apply the test of reason to this question it
answer is as follows. The Court of Appeal itself is
tion to judge by constant experience the advantag
ages of the rule. Further, it itself first laid down t
there is no tradition that only the House of Lords
the rules affecting this court. On these grounds it
nised that the Court of Appeal can change the
to, the power to do so being exercisable by a majo
manent members. There seems no reason, thoug
possess this power exclusively. Because of its role
visor of the law, the House of Lords should also b

42 See supra, n. 37.

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C.L.J. Status of Rules of Precedent 179

the rule if it chooses to. That, it seems to me, i

to this question; and if that is so, then on the v
is presently the law on this topic. Still it is not
be the law under all circumstanees. If a major
Lords were to express a contrary view, ruling in
it alone was entitled to change this rule, then I
it is desirable that the House should be able to m
on any point of law its decision should be decis
less complete picture is this: both the Court of A
of Lords presently possess a power to change
possess a liberty to exercise it; the House of
this position by ruling that it was for it alone to m
in this circumstance it would certainly deprive t
of its liberty, and probably also (though the
consideration), of the power itself.

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