THE NATIONAL UNIVERSITY OF

ADVANCED LEGAL STUDIES

HISTORY OF STATUTORY PRESUMPIONS

Topic: Early development of common law

Submitted by,

Adarsh V

1412

Sem II BA.LL.B ( hons.)

INTRODUCTION

In common law legal systems, precedent is a principle or rule established in a previous legal case
that is either binding on or persuasive for a court or other tribunal when deciding subsequent
cases with similar issues or facts.1 Common-law legal systems place great value on deciding
cases according to consistent principled rules, so that similar facts will yield similar and
predictable outcomes, and observance of precedent is the mechanism by which that goal is
attained. The principle by which judges are bound to precedents is known as stare decisis.
Common-law precedent is a third kind of law, on equal footing with statutory law (that is,
statutes and codes enacted by legislative bodies) and delegated legislation (in U.K. parlance) or
regulatory law (in U.S. parlance) (that is, regulations promulgated by executive branch agencies).

Case law, in common-law jurisdictions, is the set of decisions of adjudicatory tribunals or other
rulings that can be cited as precedent. In most countries, including most European countries, the
term is applied to any set of rulings on law, which is guided by previous rulings, for example,
previous decisions of a government agency.

Essential to the development of case law is the publication and indexing of decisions for use by
lawyers, courts, and the general public, in the form of law reports. While all decisions are
precedent (though at varying levels of authority as discussed throughout this article), some
become "leading cases" or "landmark decisions" that are cited especially often. In civil law
systems, past decisions may influence future decisions, even if they do not have the precedential,
binding effect that they have in common law decision-making. Stare decisis is a legal principle
by which judges are obligated to respect the precedent established by prior decisions. The words
originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta
movere: "to stand by decisions and not disturb the undisturbed". In a legal context, this means
that courts should abide by precedent and not disturb settled matters.2 The principle can be
divided into two components

1. A decision made by a superior court, or by the same court in an earlier decision, is

binding precedent that the court itself and all its inferior courts must follow.

1
"Precedent". Dictionary.com. Retrieved September 6, 2018
2
Adeleye, Gabriel et al. World Dictionary of Foreign Expressions: a Resource for Readers and Writers, page 371
(1999)
 2. A court may overturn its own precedent, but should do so only if a strong reason exists to
do so, and even in that case, should be guided by principles from superior, lateral, and
inferior courts.

The second principle, regarding persuasive precedent, reflects the broad precedent guidance a
court may draw upon in reaching all of its decisions. 3 This paper will lay out the original
understanding of the early development of precedents in common law and suggest that the
original understanding still has something to teach us.

EARLY DEVELOPMENT OF PRECEDENT

The importance of precedent as inherently justice-seeking may be seen in the differences

between the precedent-based common law compared to its immediate predecessors, such as trial
by ordeal or trial by combat. While the latter methods are rooted in mere chance or physical
strength, the former is based on reason, equality and fairness. Trial by ordeal was prevalent in
pre-Norman Anglo-Saxon England.4 For freemen, the most common ordeal was the hot iron.
Specifically, a hot iron bar was carried nine feet by the accused. The accused's burns were
bandaged for three nights and were then uncovered. If the burns had healed, the accused was
deemed not guilty or not liable by the judgment of God. If the burns had not substantially healed,
the accused was deemed guilty or liable. It is indeed shocking how the legal method of ordeal is
completely unrelated to justice and is no different in rationality than a throw of the dice.

The Norman Conquest of England in 1066 brought with it the trial by combat, which replaced
the ordeal. In civil cases, a battle was fought between "champions" who represented the parties.
The champion was "originally a witness who was ... bound by homage to defend his lord's title."
Later, champions formed aprofessional group and were hired by litigants in a manner vaguely
similar to lawyers. 5In criminal cases, the litigants were required to personally fight each other to
the death.15 As with trial by ordeal, trial by combat was a method completely unrelated to
rational justice. Although it was believed that God determined the outcome of the combat, it was

3
Kmiec, Keenan. The Origin and Current Meanings of "Judicial Activism", California Law Review (2004):
4
THEODORE F. T. PLCUCKNETT, A CONCISE HISTORY OF THE COMMON LAw 102 (The
Lawyers Co~Operative Publishing Co. 1929).
5
PLUCKNETT, at 105.
more accurately an institution of "might makes right." Within a century, however, Henry II
began the process of uniting England under a common system of laws. 6Soon, a more coherent
system of law, involving both learned judges and professional bar, emerged.17 The bench and
bar, in the manner of all bureaucracies, began to keep records of their actions and the arguments
and decisions of courts then served as tools to guide arguments by advocates and judgments by
the courts. 18 By 1250, the common law system saw Henry de Bracton, an accomplished judge,
attempting to explain the principles and procedures of English law through a collection of cases
and an accompanying treatise, demonstrating a strong belief in the value of precedents.19 Even
at this early stage, the core justice-seeking premise of the common law was that, "if like matters
arise let them be decided by like, ... since the occasion is a good one for proceeding a similibus
ad similia." Soon after Bracton's effort, the arguments and decisions were being recorded in "the
very words of judges and pleaders," and both counsel and the court cited to prior decisions and
knew full well that a decision would be viewed as precedent in later cases. 7These records, while
not individually binding in the modern sense, were viewed as evidence that the course of the
common law was on the side of the advocate urging them. 8 In sixteenth century England, there
was a dramatic transformation of legal methodology resulting in the modern common 9law.
Harold J. Berman writes of the period: ”The new emphasis on the historicity of English law, that
is, on the normative character of its historical development over generations and centuries, was
manifested in new ways of systematizing it. The most obvious methodological manifestation of
the new historical jurisprudence was the emergence of the modern doctrine of precedent.”

The great importance attached to the judicial precedents is a distinguishing feature of the English
legal system. The edifice of the common law is made up of judicial decisions. In no legal system
of the world so much authority is vested with the precedents. Though present English doctrine of
precedent came into being in the 19th century, its history goes many centuries back. The
organization of the judicial system, the power and the authority of the judges, legal thought, and

6
J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 13-14 (4th ed. 2002)
("Against that uniform system, local custom would thereafter be seen at best as exceptional
and at worst as exceptionable.").
7
BAKER, (citing Midhope v. Prior of Kirkham, 36 S.S. 178
(1313) (Stanton, J.) (speaking of his decision, most likely directly to a reporter, "one may
safely put that in his book for law.")
8

9
HAROLD J. BERMAN, LAW AND REVOLUTION, II: THE IMPACT OF THE PROTESTANT
REFORMATIONS ON THE WESTERN LEGAL TRADITION 270 (2003).
the publication of the law reports all helped in the growth of the doctrine of precedent in English
law.10

Sir Edward Coke was the most powerful judicial and scholarly champion of this precedent-based
common law. Coke writes "Neminem opportet esse sapientiorem legibus : no man out of his
own private reason ought to be wiser than the law, which is the perfection of reason." 11
Specifically, Coke defines law as an "artificial perfection of reason" that incorporates a judicial
dialectic of experience and legal precedent over time. A judge is personally constrained by
precedent to applying the law in a just-equal way, while continually refining the law by studying
the precedents and the facts of new cases. In Coke's work was seen a keen focus on the nexus
between the common law and justice via the utilization of precedent. There is a consensus that
Sir William Blackstone's Commentaries on the Laws of England was the singularly most
important intellectual influence on the attorneys who drafted the Constitution. 12 In fact,
Blackstone's Commentaries "rank second only to the Bible as a literary and intellectual influence
on the history of American institutions."13

For Blackstone, then, judges were carriers of tradition. Thei, job was to gather and pass on the
wisdom of our culture, to implement the received law of nature and of nature's god, not to alter
society. Now, this may all seem enormously arcane, and after all, it is English, but this view of
the common law was adopted pretty much wholesale by everybody who counted in America in
the 19th Century, including Joseph Story, James Kent, John Marshall, and as far as I can tell,
virtually all sitting judges. 28 Nevertheless, it has to be admitted, it is true, that lots of people
said that this-Blackstone's-view of the common law was, to put it politely, horse manure. The
common law judges were always making it up as they went along. Jeremy Bentham said this to
criticize Blackstone.14 Robert Rantoul said it in criticism of Justice Story. 15And Oliver Wendall
Holmes said it in criticism of everybody.

10
https://www.law.kuleuven.be/apps/jura/public/art/21n3/vong.pdf [accessed at 1:31,4/20/2019]
11
Coke, INSTITUTES OF THE LAWS OF ENGLAND, Lib. 2. Cap. 6. Sect. 138 (3d. ed. 1633).

12
See generally Bader, at 6-9.
13
Bader, supra note 27, at 8 (citing ROBERT A. FERGUSON, LAW AND LE'ITERS IN
AMERICAN CULTURE 11 (1984)).
14
JEREMY BENTHAM, A COMMENT ON THE COMMENTARIES: A CRITICISM OF WILLIAM
BLACKSTONE'S COMMENTARIES ON THE LAWS OF ENGLAND (1928).
15
Robert Rantoul, Jr., Oration at Scituate, in MEMOIRS, SPEECHES AND WRITINGS OF
ROBERT RANTOUL, JR. 251, 280 (Luther Hamilton ed., 1854)
These days, we have embraced Holmes. I think he is hovering behind much of this issue. As you
may have noticed, though, it is currently open season on Holmes. In short, I think it could be said
that Holmes may have gotten it wrong in failing to follow prior precedents, as our great common
law judges did. They did not believe they were legislating. They believed, perhaps like Justice
Markham, and like Blackstone, that they were following custom and that they were not dictating
or formulating new policies.33 Indeed, even Cardozo, who is the great champion of common law
decision and who, in his wonderful book The Nature of the Judicial Process-which by the way is
all wrong, too-he actually called it "judicial legislation. 3 4 If it is the job of the judge tolegislate,
though, to be fair to Cardozo, he suggested it was just an interstitial phenomenon.

But even if Cardozo thought that judges ought to be judicial legislators, if you read Cardozo's
opinions he always argues that he is not making new law, even when he is. He always argues
that he is following prior doctrine.37 He never claimed the right to be a partner in legislation. He
always said, even in his scholarship, that courts were subordinate to legislatures; not partners, but
clearly subordinate.16 Between 1898 and 1966, the House of Lords were bound to their own
previous decisions, making the law consistent due to rulings made in London Street Tramways v
London County Council [1898]. In 1966, the Lord Chancellor issued a Practice Statement,
stating, “the rigid adherence to precedent may lead to injustice in a particular case and also
unduly restrict the proper development of the law”. It also stated that the House of Lords would
be able to “depart from a previous decision when it appears right to do so” (supra n.2). The
House of Lords attempt to follow the majority of past decisions. Exceptions include where unjust
decisions result from following past decisions. When deciding cases, there is a test of subjective
recklessness that is relied upon. This is where certain aspects of particular cases are taken into
account. For example, in the case of R v Caldwell [1982], the defendant got sacked from a hotel
that he worked at; and one night got drunk and set fire to the hotel, with the intention to cause
damage to the property. However, there were also guests sleeping in the hotel. He was therefore
charged with not only arson, but also with intent to endanger human life. Lord Diplock decided
to remove the objective test, as being drunk was not seen as a defence for recklessness. In R v G
[2003] the objective test was put back in as it was decided that the defendants should be judged
with consideration to their age and understanding. Two boys, one aged eleven and the other
twelve, camped in a yeard behind a shop with permission from their parents. They set fire to
16
See, e.g., Benjamin N. Cardozo, A Ministry of Justice, 35 HARv. L. REv. 113 (1921)
some newspapers, thinking that the fire would go out itself. However, the fire spread to nearby
bins and finally to the shop. Over £1 million of damage was caused. The boys were unaware of
the damage that they had caused as they had left before the fire spread. As they did not intend the
damage it was decided that their infancy should be taken into account. In their defence, reckless
behaviour is where the defendant is aware of the risk, and seeing as the boys did not intend the
damage, the objective test was put back in. These cases show that the House of Lords are
prepared to depart from past decisions when it is desirable to do so. Similarly, in Elliot v C
[1983], a 14 year old girl who had learning difficulties, was playing with matches and set a
neighbours shed on fire. The case was acquitted on the basis that she was unaware of the damage
caused. However, an appeal by the prosecution was allowed, based on the Caldwell test that
being unaware of the damage caused is irrelevant. This case is in between R v Caldwell (supra
n.4) and R v G (supra n.5), as it is decided on the basis of the Caldwell test, but has similar facts
to the latter case. This could cause problems for future cases, making it difficult for judges to
decide which case is best suited to follow. As the question addresses, the doctrine of precedent
can be seen as a restraint on the development of law due to its strict application. However,
judicial precedent does have its advantages. The main advantage of using precedent is that it
provides certainty in the law. As cases with sufficiently similar material facts are bound by past
decisions, it provides an idea of how the case will be decided. Another advantage is that it
provides consistent decisions within the law, which also ensures fairness. Consistency also
provides that people are reassured in the law, as they do not feel that they are being treated
unfairly.

However, precedents could become ‘out of date’, for example in R v R [1991], the laws changed
in the respect that a man could now be guilty for raping his wife, whereas before he couldn’t.
This can be referred to as being persuasive precedent, which is not binding on the courts. A
judge has the right to consider a persuasive precedent and be persuaded to follow it if he believes
that it provides the correct principle. The introduction of the Practice Statement ensured that
flexibility was restored in the development of the law. The ability to overrule past decisions
means that there is room for law to develop at the same rate as society changes. Precedent also
provides a time saving element, which in the long run also saves money. Being bound to past
decisions, courts avoid long periods of litigation. As cases with sufficiently similar facts would
have already been decided, it saves the process of deciding the legal ruling, which can often take
a long time.

Therefore, I believe it is right to say that, “While the English common law system has its roots in
the 11th century, the present system has evolved over the past 350 years, with judges basing their
decisions on those made by predecessors.”

Common law has no basis in statute, and is established and developed through written opinions
of judges delivered at the end of a trial. These opinions are binding on future decisions of lower
courts in the same jurisdiction. However, that is not to say that common law systems derive all of
their laws from case law. Democratic countries that have adopted the common law system have
legislative bodies at the centre of their democracies, and these bodies regularly pass new
legislation. This legislation is then interpreted and applied by the judiciary during trials; these
rulings will then be applied in future cases under the doctrine of stare decisis, another name for
judicial precedent. Large bodies of law, for example those relating to property, contracts and
torts, are traditionally part of the common law. More modern areas of law such as employment
law, intellectual property law and health and safety tend to be based on statute rather than on
common law.
CONCLUSION

Judicial precedent is an independent source of law and is as important as custom and legislation.
In fact, this doctrine of judicial precedent is an unique feature of English law as also of the
Common Law Countries. In England Judge played a significant role in developing the English
law. During the Middle Ages when the Parliament had not assumed the status of a sovereign law
making body, it was left to the judges to define law and lay down legal principles. Thus,
adjudication in England made a great contribution towards the formulation and development of
English law. It is said that the English law is mostly a judge-made law. This principle of law,
which was so common in England, is not unknown in a countries where the doctrine of legal
precedent has been followed. In the continental countries like France, Germany and Italy,
however, the system is different, there the judges look to legislation or will of the legislature for
interpretation of law and are not bound to follow a previous decision of a higher Court. Among
the modern legal systems the Anglo-American law is judge made law. It is called ‘common law’.
It developed mainly through judicial decisions. Most of the braches of law, such as tort, have
been exclusively by the judges. The constitutional law of England, especially the freedom of the
citizens, developed through judicial decisions.17

17
Tripathi (BNM), “ Jurisprudence & Legal Theory", published by Allahabad Law Association,
Allahabad,1977. at 194.