Do precedents create rules?

Legal Theory

Volumn 11, Issue 1, 2005, Pages 1-26

  Lamond, Grant ^a  

^a BALLIOL COLLEGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84925602717     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325205050019     Document Type: Article

References (37)

1. S. Perry, Judicial Obligation, Precedent and the Common Law,7OXFORD J. LEGAL STUD. 215-257 (1987).
2. R.M. DWORKIN, TAKING RIGHTS SERIOUSLY 110-118 (rev. ed., 1978); M. Moore, Precedent, Induction, and Ethical Generalization, in PRECEDENT IN LAW (L. Goldstein, ed., 1987).
3. J. RAZ, THE AUTHORITY OF LAW 185 (1979); M. EISENBERG, THE NATURE OF THE COMMON LAW 61-62 (1988).
4. Those familiar with Raz's account of rules as “protected reasons” may be particularly drawn to this conclusion. I will explain later why even on this account there is an important difference between rules and rationes.
5. See, e.g., R. CROSS & J.W. HARRIS, PRECEDENT IN ENGLISH LAW 72 (1991); D.N. MacCormick, Why Cases Have Rationes and What These Are, in PRECEDENT IN LAW 170 (L. Goldstein, ed., 1987); J. Bell, Sources of Law, in ENGLISH PRIVATE LAW §§1.63-1.79 (P. Birks, ed., 2000); RAZ, Those familiar with Raz's account of rules as “protected reasons” may be particularly drawn to this conclusion. note 3, at 183-189; Larry Alexander, Constrained by Precedent, 63 S. CAL. L. REV. 1-64 (1989); FRED SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 181-187 (1991).
6. See, e.g., RAZ, PRECEDENT IN ENGLISH LAW 72 note 3, at 195; Alexander, PRECEDENT IN ENGLISH LAW 72 note 5, at 23; D.N.MACCORMICK, LEGAL REASONING AND LEGAL THEORY 213-228 (1994).
7. See Alexander, PRECEDENT IN ENGLISH LAW 72 note 3 note 5, at 19; MACCORMICK, PRECEDENT IN ENGLISH LAW 72 note 3 note 6, at 45; J. RAZ, PRACTICAL REASON AND NORMS 50 (1990); SCHAUER, PRECEDENT IN ENGLISH LAW 72 note 3 note 5, at 23-24.
8. The term is borrowed from EISENBERG, There are other ways of setting up a decision-making process, but for the purposes of this discussion, these alternatives can be put to one side. note 3, at 10-12.
9. Rules may also be advantageous if the decisions made using them will (over a range of cases) accord better with the underlying balance of reasons than decisions made directly attempting to apply those reasons. But the epistemological basis needed for making these two judgments is frequently absent.
10. SCHAUER, Rules may also be advantageous if the decisions made using them will (over a range of cases) accord better with the underlying balance of reasons than decisions made directly attempting to apply those reasons. note 5, at chs. 3-5.
11. RAZ, Rules may also be advantageous if the decisions made using them will (over a range of cases) accord better with the underlying balance of reasons than decisions made directly attempting to apply those reasons. note 5 note 7, at 73-84.
12. A.W.B. Simpson, The Common Law and Legal Theory, in LEGAL THEORY AND LEGAL HISTORY: ESSAYS ON THE COMMON LAW 372 (1973); Perry, Rules may also be advantageous if the decisions made using them will (over a range of cases) accord better with the underlying balance of reasons than decisions made directly attempting to apply those reasons. note 5 note 7 note 1, at 227-229; Moore, Rules may also be advantageous if the decisions made using them will (over a range of cases) accord better with the underlying balance of reasons than decisions made directly attempting to apply those reasons. note 5 note 7 note 2, at 185; Fred Schauer, Is the Common Law Law? 77 CAL. L. REV. 455-471 (1989), at 455.
13. Sharp (1987) 1 QB 853 (Court of Appeal): the earlier decision, Graham (1982) 74 Cr App R 235 (Court of Appeal), had been endorsed by the House of Lords in Howe (1987) AC 417.
14. See, e.g., A.W.B. Simpson, The RatioDecidendi of a Case and Doctrine of Precedent, in OXFORD ESSAYS IN JURISPRUDENCE 168-169 (A.G. Guest, ed., 1961); MACCORMICK, Sharp note 6, at 82-83; RAZ, Sharp note 3, at 184; EISENBERG, Sharp note 3, at 51-61.
15. See B. Levenbook, The Meaning of a Precedent, 6 LEGAL THEORY 185-240 (2000), at 201-11.
16. For two different approaches of this kind, see DWORKIN, The Meaning of a Precedent note 2, at 110-111; and Perry, The Meaning of a Precedent note 1, at 235.
17. This is derived from Schauer, For two different approaches of this kind note 14, at 469-471, though Schauer's proposal is more closely tied to Eisenberg's account, For two different approaches of this kind note 3, of the common law.
18. The quotes are from RAZ, This is derived from Schauer note 3, at 188, 187. Raz qualifies the later statement by saying that a modified rule “can usually be justified only be reasoning very similar to that justifying the original rule” (emphasis added), but it is unclear what situations this covers.
19. As noted by N. SIMMONDS, THE DECLINE OF JURIDICAL REASON 112-114 (1984), this makes the view quite similar to the tradition which holds that distinguishing is simply a case of reinterpretation-a tradition rejected by RAZ, The quotes are from RAZ note 3, at 183-185.
20. See the English cases on the “marital exemption” to rape claims, discussed in the decision of the House of Lords that finally abrogated the exemption: R v. R (1992) 1 AC 598. The rationale for this exemption was said to have been that marriage constitutes an irrevocable consent to sexual intimacy-a view flatly rejected by the House of Lords.
21. See Robert Goff J's judgment in BP Exploration v. Hunt (No.2) (1979) 1 WLR 783 (Queen's Bench Division). I do not mean that this is a better rationale, merely that the courts have abandoned the earlier rationale.
22. This provides a simpler explanation for the way principles are treated than Perry's argument that while courts are bound by the principles the precedent court relied upon, just how binding they are depends upon multiple “weighing” factors; Perry, Robert Goff J's judgment in BP Exploration v. Hunt note 1, at 241-243.
23. This explains the judicial practice noted by RAZ, This provides a simpler explanation for the way principles are treated than Perry's argument that while courts are bound by the principles the precedent court relied upon note 3, at 187; cf. Alexander, This provides a simpler explanation for the way principles are treated than Perry's argument that while courts are bound by the principles the precedent court relied upon note 5, at 42-44. The clearest example of precedent operating on the facts reported in the case rather than the actual facts is striking out applications, where the court decides that the plaintiff's allegations, even were they to be proved, do not disclose a cause of action.
24. Nor is it a response to this point to say that there could be a case with identical facts that did not have this effect. The class of cases with identical facts is an empty set in reality; and in any case it leaves the problem of explaining how all those other “rule-applying” situations manage to change the law.
25. The role of the ratio might suggest some affinity with Alexander's taxonomy of rule/result hybrid views of precedent, Nor is it a response to this point to say that there could be a case with identical facts that did not have this effect. note 5, at 44-45, except that the reason-based view of precedent is not a hybrid using rules but a unified account of case-by-case decisionmaking.
26. Contrary to a common objection; Simpson, The role of the ratio might suggest some affinity with Alexander's taxonomy of rule/result hybrid views of precedent note 14, at 372; Moore, The role of the ratio might suggest some affinity with Alexander's taxonomy of rule/result hybrid views of precedent note 2, at 185-186; Perry, The role of the ratio might suggest some affinity with Alexander's taxonomy of rule/result hybrid views of precedent note 1, at 235-237; Schauer, The role of the ratio might suggest some affinity with Alexander's taxonomy of rule/result hybrid views of precedent note 14, at 455.
27. As Simpson noted: “There may indeed be as many ways of finding the ratio of a case as there are ways of finding a lost cat”; Contrary to a common objection; Simpson note 16, at 159.
28. Note, by contrast, legislative acts such as Bills of Attainder.
29. On protected reasons, see RAZ, Note note 3, at 16-19; J. Raz, Facing Up, 62 S. CAL. L. REV. 1153-1235 (1989), at 1160-1162. On exclusionary reasons, see RAZ, Note note 7, at 35-48, 73-84, 178-99; Raz, Facing Up, at 1154-79.
30. RAZ, My understanding is that Raz claims that rules are general protected reasons, not that all general protected reasons are, ipso facto, rules. note 3, at 188-89; SCHAUER, My understanding is that Raz claims that rules are general protected reasons, not that all general protected reasons are, ipso facto, rules. note 5, at 187. The power to overrule is even more limited in operation.
31. Of course, courts sometimes rationalize a distinction with arguments they would not give were there not a precedent blocking their preferred argument. This may help to explain the phenomenon of “jagged” development in common-law doctrine discussed by EISENBERG, My understanding is that Raz claims that rules are general protected reasons, not that all general protected reasons are, ipso facto, rules. note 3 note 3, at 70-74.
32. This explains how later courts can make decisions on the merits of distinguishing even when they disagree with the outcome of the precedent case; cf. Alexander, Of course, courts sometimes rationalize a distinction with arguments they would not give were there not a precedent blocking their preferred argument. note 5, at 34-37. They determine the strength of the reason provided by the ratio that has to be defeated and consider whether a purported distinction provides either (a) a better reason than one already rejected, or (b) a different type of reason.
33. This is accentuated where the discussion abstracts from a particular jurisdiction and considers the “law” of a country with separate jurisdictions (such as the contract law of the “United States”), or where a “model” doctrine roughly based on existing practice is proposed, as in the Restatements.
34. As has been emphasized by Simpson, Historically, some areas of the common law have also become more rule-like due to the authority of certain texts, such as Hale's Pleas of the Crown, being used in preference to the (relatively inaccessible) cases. note 14, and G. Postema, Philosophy of the Common Law, in OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW (Coleman & Shapiro, eds., 2002). Simpson's suggestion, Historically, some areas of the common law have also become more rule-like due to the authority of certain texts, such as Hale's Pleas of the Crown, being used in preference to the (relatively inaccessible) cases. note 14, at 373-376, that the common law was a system of customary law, however, is open to criticism if it is taken to mean that the common law was based on convention; see Perry, Historically, some areas of the common law have also become more rule-like due to the authority of certain texts, such as Hale's Pleas of the Crown, being used in preference to the (relatively inaccessible) cases. note 1, at 253-254.
35. Prior to the Renaissance and the rise of printing, the consensus seems to have been based on the profession's collective understanding of the law; later, it became the profession's collective understanding of the extant case law. See J.H. BAKER, THE OXFORD HISTORY OF THE LAWS OF ENGLAND, VOLUME VI, 1483-1558 486-489 (2003).
36. This aspect of normative powers is highlighted by RAZ, Prior to the Renaissance and the rise of printing, the consensus seems to have been based on the profession's collective understanding of the law; later, it became the profession's collective understanding of the extant case law. note 7, at 98-104.
37. See, e.g., K.N. LLEWELLYN, THE COMMON LAW TRADITION (1960).