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Editorial Committee of the Cambridge Law Journal

The Status of Rules of PrecedentAuthor(s): P. J. EvansSource: The Cambridge Law Journal, Vol. 41, No. 1 (Apr., 1982), pp. 162-179Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law JournalStable URL: http://www.jstor.org/stable/4506418 .

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Cambridge awJournal,41 (1), April1982,pp. 162-179Printed n GreatBritain.

THE STATUS OF RULES OF PRECEDENTP. J. Evans*

In a recent article in the Cambridge Law Journal,1 Laurence Gold-stein argues that four problems of legal theory which are supposedto present elements of paradox are capable of a reasonably simplesolution. I am interested here in only one of the problems discussedby Goldstein: that concerning the status of the rules of precedent.I agree with Goldstein that this problem has a reasonably simplesolution: but I disagree with the solution he proposes. (Broadly thisis that pronouncements on precedent do not establish rules of law.)I propose in this short article to offer what I believe to be a correctsolution to this problem. The solution proposed is one which hasalready been suggested by A. W. B. Simpson in 1961 in

"The RatioDecidendi of a Case and the Doctrine of Binding Precedent" 2; but

there is, I believe, a defect in Simpson's formulation of the argumentfor it, which has impeded its general acceptance. In any event, asthere is clearly still controversy about the issue, it seems worthwhilerestating this solution with fresh arguments. I will first discuss theproblem, then its proposed solution, then Simpson's discussion ofthe topic, and finally some further questions which are suggestedby the proposed solution.

J. The ProblemAs it seems to me, the problem which puzzles us about the statusof rules of precedent is that of reconciling three apparently irrecon-cilable propositions, each of which seems to have good claim tosupport. The three propositions are:

(1) That rules of precedent are ordinary rules of law whichimpose duties identical to those imposed by any other duty-imposing rules of law.

(2) That the authority of the rules of precedent cannot rest onthe 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.

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

a rule of recognition cannot be changed. As the rule of recognitionof a system is the ultimate test of legal validity within the system,if a different rule of recognition is asserted there can be no criterionby virtue of which it is valid. Vis-a-vis the old rule of recognitionit must be invalid. Thus any change of a rule of recognition mustbe revolutionary.

The way to reconcile propositions 1 and 2 with proposition 3 isto postulate as the relevant part of the rule of recognition, not therules of precedent themselves, but a rule which either stipulates, orjustifies as a particular conclusion, that the judges may from timeto time settle the rules of precedent. Such a rule would give thejudges power to make rules of precedent which would then bebinding until such time as these rules were changed. It would remain,of course, a question of detail just which judges had this power inregard to each particular aspect of the rules.

If this view of the rules of precedent is correct it is a consequencethat the judges of at least the highest court can make rules bindingon themselves which they are also free at any time to abandon. Thismay seem disturbing, but it is not such an odd conception as it mayappear. Even a single individual can make rules for himself whichhe is at any time free to change. If I make a rule that I will rise at6.30 every morning and do my exercises, then it is one thing for meto abandon this rule, and quite another for me to fail to live up toit on a particular occasion. In any event, since the members of acourt 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 canmake a rule which is binding on each individual member until achange is made by a further collective decision of the court.

This then is the solution which I propose to the problem of thestatus of rules of precedent. They are rules made under the authorityof a more basic rule.

III. Simpson's Argument for this SolutionAs I have said, essentially this solution to the problem was proposedby A. W. B. Simpson in 1961.38 I now turn to consider Simpson'sarguments.

Simpson argues (correctly in my view) that it only makes senseto say that the House of Lords can put itself under an obligationto obey its own decisions if one assumes that there is a rule whichgives the House this power. Unfortunately, however, he treats thepossibility of such a rule as a valid argument against Glanville38 " The Ratio Decidendi of a Case and the Doctrine of Binding Precedent,"supra, n. 2.




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