Editorial Committee of The Cambridge Law Journal

Editorial Committee of the Cambridge Law Journal
The Status of Rules of Precedent Author(s): P. J. Evans Source: The Cambridge Law Journal, Vol. 41, No. 1 (Apr., 1982), pp. 162-179 Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law Journal Stable URL: http://www.jstor.org/stable/4506418 . Accessed: 06/05/2013 08:35
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LawJournal,41 (1), April 1982,pp. 162-179 Cambridge Printedin GreatBritain.
THE
STATUS
OF
RULES
OF
PRECEDENT
P. J. Evans*
In a recent stein
in the Cambridge Law Journal,1 Laurence Goldof four that which are problems legal theory supposed argues to present elements of paradox are capable of a reasonably simple solution. I am interested here in only one of the problems discussed the status of the rules of precedent. that concerning that this problem has a reasonably Goldstein simple
article
by Goldstein: I agree with solution:
but I disagree with the solution he proposes. (Broadly this is that pronouncements on precedent do not establish rules of law.) I propose in this short article to offer what I believe to be a correct
solution
The solution is one which has to this problem. proposed " B. A. in 1961 been W. in The Ratio suggested by Simpson already of Binding Precedent" of a Case and the Doctrine Decidendi 2; but there is, I believe, a defect in Simpson's formulation of the argument In any event, as for it, which has impeded its general acceptance. about the issue, it seems worthwhile there is clearly still controversy restating this solution then with fresh
problem, the topic,
its proposed and finally some solution.
I will first discuss the arguments. of then discussion solution, Simpson's further questions which are suggested
by the proposed
J. The
Problem
As it seems to me, the problem which puzzles us about the status of rules of precedent is that of reconciling three apparently irreconeach of cilable propositions, which seems to have good claim to support. The three propositions rules duties are: (1) That impose of precedent are ordinary rules of law which identical to those imposed by any other dutyrules of law. cannot rest on
imposing of the rules of precedent (2) That the authority the rules of precedent themselves. can be changed. (3) That rules of precedent
* 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
C.L.I.
Status
of Rules
of Precedent
173
a rule of recognition cannot be of a system is the ultimate test if a different rule of recognition by virtue of which it is valid. it must be invalid. be revolutionary. Thus
As the rule of recognition validity within the system, is asserted there can be no criterion Vis-a-vis the old rule of recognition must any change of a rule of recognition changed. of legal
1 and 2 with proposition 3 is The way to reconcile propositions to postulate as the relevant part of the rule of recognition, not the rules of precedent themselves, but a rule which either stipulates, or a as that the from time conclusion, justifies particular judges may to time the rules of precedent. Such a rule would give the make to which rules of would then be judges power precedent such as until rules time It these were would remain, binding changed. of course, a question of detail just which judges had this power in regard to each particular aspect of the rules. If this view of the rules of precedent is correct it is a consequence that the judges of at least the highest court can make rules binding on themselves which they are also free at any time to abandon. This settle as may seem disturbing, but it is not such an odd conception can make rules for himself appear. Even a single individual he is at any time free to change. If I make a rule that I will 6.30 every morning and do my exercises, then it is one thing it may which rise at for me
to abandon this rule, and quite another for me to fail to live up to it on a particular occasion. In any event, since the members of a court must act as a body to make changes in the rules of precedent, it makes perfectly good sense to say that the court as a whole can make which is binding on each individual member until a is made a further collective decision of the court. change by This then is the solution which I propose to the problem of the status of rules of precedent. They are rules made under the authority of a more basic rule. III. Simpson's Argument for this Solution a rule
As I have said, essentially this solution to the problem was proposed A. W. B. in 1961.38 I now turn to consider Simpson's by Simpson arguments. in my view) that it only makes sense Simpson argues (correctly 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, he treats the however, of such a rule as a valid argument Glanville possibility against 38 " The Ratio Decidendi of a Case and the Doctrine of Binding Precedent," supra, n. 2.

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LawJournal,41 (1), April 1982,pp. 162-179 Cambridge Printedin GreatBritain.

by Goldstein: I agree with solution:

problem, the topic,

its proposed and finally some solution.

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