PRECEDENT.
§ 61. =The Authority of Precedents.=
The importance of judicial precedents has always been a distinguishing
characteristic of English law. The great body of the common or unwritten
law is almost entirely the product of decided cases, accumulated in an
immense series of reports extending backwards with scarcely a break to
the reign of Edward the First at the close of the thirteenth century.
Orthodox legal theory, indeed, long professed to regard the common law
as customary law, and judicial decisions as merely evidence of custom
and of the law derived therefrom. This, however, was never much better
than an admitted fiction. In practice, if not in theory, the common law
in England has been created by the decisions of English judges. Neither
Roman law, however, nor any of those modern systems which are founded
upon it, allows any such place or authority to precedent. They allow to
it no further or other influence than that which is possessed by any
other expression of expert legal opinion. A book of reports and a
text-book are on the same level. They are both evidences of the law;
they are both instruments for the persuasion of judges; but neither of
them is anything more.[151] English law, on the other hand, draws a
sharp distinction between them. A judicial precedent speaks in England
with authority; it is not merely evidence of the law but a source of it;
and the courts are bound to follow the law that is so established.
It seems clear that we must attribute this feature of English law to the
peculiarly powerful and authoritative position which has been at all
times occupied by English judges. From the earliest times the judges of
the king’s courts have been a small and compact body of legal experts.
They have worked together in harmony, imposing their own views of law
and justice upon the whole realm, and establishing thereby a single
homogeneous system of common law. Of this system they were the creators
and authoritative interpreters, and they did their work with little
interference either from local custom or from legislation. The
centralization and concentration of the administration of justice in the
royal courts gave to the royal judges a power and prestige which would
have been unattainable on any other system. The authority of precedents
was great in England because of the power, the skill, and the
professional reputation of the judges who made them. In England the
bench has always given law to the bar; in Rome it was the other way
about, for in Rome there was no permanent body of professional judges
capable of doing the work that has been done for centuries in England by
the royal courts.
§ 62. =Declaratory and Original Precedents.=
In proceeding to consider the various kinds of precedents and the
methods of their operation, we have in the first place to distinguish
between those decisions which are creative of the law and those which
are merely declaratory of it. A _declaratory_ precedent is one which is
merely the application of an already existing rule of law; an _original_
precedent is one which creates and applies a new rule. In the former
case the rule is applied because it is already law; in the latter case
it is law for the future because it is now applied. In any
well-developed system such as that of modern England, declaratory
precedents are far more numerous than those of the other class; for on
most points the law is already settled, and judicial decisions are
therefore commonly mere declarations of pre-existing principles.
Original precedents, however, though fewer in number, are greater in
importance. For they alone develop the law; the others leave it as it
was, and their only use is to serve as good evidence of it for the
future. Unless required for this purpose, a merely declaratory decision
is not perpetuated as an authority in the law reports. When the law is
already sufficiently well evidenced, as when it is embodied in a statute
or set forth with fulness and clearness in some comparatively modern
case, the reporting of declaratory decisions is merely a needless
addition to the great bulk of our case-law.
It must be understood, however, that a declaratory precedent is just as
truly a source of law as is one belonging to the other class. The legal
authority of each is exactly the same. Speaking generally, the authority
and legal validity of a precedent do not depend on whether it is, or is
not, an accurate statement of previously existing law. Whether it is or
is not, it may establish as law for the future that which it now
declares and applies as law. The distinction between the two kinds turns
solely on their relation to the law of the past, and not at all on their
relation to that of the future. A declaratory precedent, like a
declaratory statute, is a source of law, though it is not a source of
_new_ law. Here, as elsewhere, the mere fact that two sources overlap,
and that the same legal principle is established by both of them, does
not deprive either of them of its true nature as a legal source. Each
remains an independent and self-sufficient basis of the rule.
We have already referred to the old theory that the common law is
customary, not case-law. This doctrine may be expressed by saying that
according to it all precedents are declaratory merely, and that their
original operation is not recognised by the law of England. Thus Hale
says in his _History of the Common Law_:—
“It is true the decisions of courts of justice, though by virtue of
the laws of this realm they do bind as a law between the parties
thereto, as to the particular case in question, till reversed by error
or attaint, yet they do not make a law properly so called: for that
only the king and parliament can do; yet they have a great weight and
authority in expounding, declaring, and publishing what the law of
this kingdom is; especially when such decisions hold a consonancy and
congruity with resolutions and decisions of former times.”[152]
Hale, however, is evidently troubled in mind as to the true position of
precedent, and as to the sufficiency of the declaratory theory thus set
forth by him, for elsewhere he tells us inconsistently that there are
three sources of English law, namely, (1) custom, (2) the authority of
Parliament, and (3) “the judicial decisions of courts of justice
consonant to one another in the series and succession of time.”[153]
In the Court of Chancery this declaratory theory never prevailed, nor
indeed could it, having regard to the known history of the system of
equity administered by that court. There could be no pretence that the
principles of equity were founded either in custom or legislation, for
it was a perfectly obvious fact that they had their origin in judicial
decisions. The judgments of each Chancellor made law for himself and his
successors.
“It must not be forgotten,” says Sir George Jessel, “that the rules of
courts of equity are not, like the rules of the common law, supposed
to have been established from time immemorial. It is perfectly well
known that they have been established from time to time—altered,
improved, and refined from time to time. In many cases we know the
names of the Chancellors who invented them. No doubt they were
invented for the purpose of securing the better administration of
justice, but still they were invented.”[154]
Both at law and in equity, however, the declaratory theory must be
totally rejected if we are to attain to any sound analysis and
explanation of the true operation of judicial decisions. We must admit
openly that precedents make law as well as declare it. We must admit
further that this effect is not merely accidental and indirect, the
result of judicial error in the interpretation and authoritative
declaration of the law. Doubtless judges have many times altered the law
while endeavouring in good faith to declare it. But we must recognise a
distinct law-creating power vested in them and openly and lawfully
exercised. Original precedents are the outcome of the intentional
exercise by the courts of their privilege of developing the law at the
same time that they administer it.
§ 63. =Authoritative and Persuasive Precedents.=
Decisions are further divisible into two classes, which may be
distinguished as authoritative and persuasive. These two differ in
respect of the kind of influence which they exercise upon the future
course of the administration of justice. An authoritative precedent is
one which judges must follow whether they approve of it or not. It is
binding upon them and excludes their judicial discretion for the future.
A persuasive precedent is one which the judges are under no obligation
to follow, but which they will take into consideration, and to which
they will attach such weight as it seems to them to deserve. It depends
for its influence upon its own merits, not upon any legal claim which it
has to recognition. In other words, authoritative precedents are _legal_
sources of law, while persuasive precedents are merely _historical_. The
former establish law in pursuance of a definite rule of law which
confers upon them that effect, while the latter, if they succeed in
establishing law at all, do so indirectly, through serving as the
historical ground of some later authoritative precedent. In themselves
they have no legal force or effect.
The authoritative precedents recognised by English law are the decisions
of the superior courts of justice in England. The chief classes of
persuasive precedents are the following:
(1) Foreign judgments, and more especially those of American
courts.[155]
(2) The decisions of superior courts in other portions of the British
Empire, for example, the Irish courts.[156]
(3) The judgments of the Privy Council when sitting as the final court
of appeal from the Colonies.[157]
(4) Judicial _dicta_, that is to say, statements of law which go beyond
the occasion, and lay down a rule that is irrelevant or unnecessary for
the purpose in hand. We shall see later that the authoritative influence
of precedents does not extend to such _obiter dicta_, but they are not
equally destitute of persuasive efficacy.[158]
§ 64. =The Absolute and Conditional Authority of Precedents.=
Authoritative precedents are of two kinds, for their authority is either
absolute or conditional. In the former case the decision is absolutely
binding and must be followed without question, however unreasonable or
erroneous it may be considered to be. It has a legal claim to implicit
and unquestioning obedience. Where, on the other hand, a precedent
possesses merely conditional authority, the courts possess a certain
limited power of disregarding it. In all ordinary cases it is binding,
but there is one special case in which its authority may be lawfully
denied. It may be overruled or dissented from, when it is not merely
wrong, but so clearly and seriously wrong that its reversal is demanded
in the interests of the sound administration of justice. Otherwise it
must be followed, even though the court which follows it is persuaded
that it is erroneous or unreasonable. The full significance of this rule
will require further consideration shortly. In the meantime it is
necessary to state what classes of decisions are recognised by English
law as absolutely, and what as merely conditionally authoritative.
Absolute authority exists in the following cases:—
(1) Every court is absolutely bound by the decisions of all courts
superior to itself. A court of first instance cannot question a decision
of the Court of Appeal, nor can the Court of Appeal refuse to follow the
judgments of the House of Lords.
(2) The House of Lords is absolutely bound by its own decisions. “A
decision of this House once given upon a point of law is conclusive upon
this House afterwards, and it is impossible to raise that question again
as if it was _res integra_ and could be re-argued, and so the House be
asked to reverse its own decision.”[159]
(3) The Court of Appeal is, it would seem, absolutely bound by its own
decisions and by those of older courts of co-ordinate authority, for
example, the Court of Exchequer Chamber.[160]
In all other cases save these three, it would seem that the authority of
precedents is merely conditional. It is to be noticed, however, that the
force of a decision depends not merely on the court by which it is given
but also on the court in which it is cited. Its authority may be
absolute in one court, and merely conditional in another. A decision of
the Court of Appeal is absolutely binding on a court of first instance,
but is only conditionally binding upon the House of Lords.
§ 65. =The Disregard of a Precedent.=
In order that a court may be justified in disregarding a conditionally
authoritative precedent, two conditions must be fulfilled. In the first
place, the decision must, in the opinion of the court in which it is
cited, be a _wrong_ decision; and it is wrong in two distinct cases:
first, when it is contrary to law, and secondly, when it is contrary to
reason. It is wrong as contrary to law, when there is already in
existence an established rule of law on the point in question, and the
decision fails to conform to it. When the law is already settled, the
sole right and duty of the judges is to declare and apply it. A
precedent _must_ be declaratory whenever it _can_ be, that is to say,
whenever there is any law to declare.
But in the second place, a decision may be wrong as being contrary to
reason. When there is no settled law to declare and follow, the courts
may make law for the occasion. In so doing, it is their duty to follow
reason, and so far as they fail to do so, their decisions are wrong, and
the principles involved in them are of defective authority.
Unreasonableness is one of the vices of a precedent, no less than of a
custom and of certain forms of subordinate legislation.
It is not enough, however, that a decision should be contrary to law or
reason, for there is a second condition to be fulfilled before the
courts are entitled to reject it. If the first condition were the only
one, a conditionally authoritative precedent would differ in nothing
from one which is merely persuasive. In each case the precedent would be
effective only so far as its own intrinsic merits commended it to the
minds of successive judges. But where a decision is authoritative, it is
not enough that the court to which it is cited should be of opinion that
it is wrong. It is necessary in innumerable cases to give effect to
precedents notwithstanding that opinion. It does not follow that a
principle once established should be reversed simply because it is not
as perfect and rational as it ought to be. It is often more important
that the law should be certain than that it should be ideally perfect.
These two requirements are to a great extent inconsistent with each
other, and we must often choose between them. Whenever a decision is
departed from, the certainty of the law is sacrificed to its rational
development, and the evils of the uncertainty thus produced may far
outweigh the very trifling benefit to be derived from the correction of
the erroneous doctrine. The precedent, while it stood unreversed, may
have been counted on in numerous cases as definitely establishing the
law. Valuable property may have been dealt with in reliance on it;
important contracts may have been made on the strength of it; it may
have become to a great extent a basis of expectation and the ground of
mutual dealings. Justice may therefore imperatively require that the
decision, though founded in error, shall stand inviolate none the less.
_Communis error facit jus_.[161]
“It is better,” said Lord Eldon, “that the law should be certain than
that every judge should speculate upon improvements in it.”[162]
It follows from this that, other things being equal, a precedent
acquires added authority from the lapse of time. The longer it has stood
unquestioned and unreversed, the more harm in the way of uncertainty and
the disappointment of reasonable expectations will result from its
reversal. A decision which might be lawfully overruled without
hesitation while yet new, may after the lapse of a number of years
acquire such increased strength as to be practically of absolute and no
longer of merely conditional authority. This effect of lapse of time has
repeatedly received judicial recognition.
“Viewed simply as the decision of a court of first instance, the
authority of this case, notwithstanding the respect due to the judges
who decided it, is not binding upon us; but viewed in its character
and practical results, it is one of a class of decisions which acquire
a weight and effect beyond that which attaches to the relative
position of the court from which they proceed. It constitutes an
authority which, after it has stood for so long a period unchallenged,
should not, in the interests of public convenience, and having regard
to the protection of private rights, be overruled by this court except
upon very special considerations. For twelve years and upwards the
case has continued unshaken by any judicial decision or
criticism.”[163]
“When an old decided case has made the law on a particular subject,
the Court of Appeal ought not to interfere with it, because people
have considered it as establishing the law and have acted upon
it.”[164]
The statement that a precedent gains in authority with age must be read
subject to an important qualification. Up to a certain point a human
being grows in strength as he grows in age; but this is true only within
narrow limits. So with the authority of judicial decisions. A moderate
lapse of time will give added vigour to a precedent, but after a still
longer time the opposite effect may be produced, not indeed directly,
but indirectly through the accidental conflict of the ancient and
perhaps partially forgotten principle with later decisions. Without
having been expressly overruled or intentionally departed from, it may
become in course of time no longer really consistent with the course of
judicial decision. In this way the tooth of time will eat away an
ancient precedent, and gradually deprive it of all its authority. The
law becomes animated by a different spirit and assumes a different
course, and the older decisions become obsolete and inoperative.
To sum the matter up, we may say that to justify the disregard of a
conditionally authoritative precedent, it must be erroneous, either in
law or in reason, and the circumstances of the case must not be such as
to make applicable the maxim, _Communis error facit jus._ The defective
decision must not, by the lapse of time or otherwise, have acquired such
added authority as to give it a title to permanent recognition
notwithstanding the vices of its origin.
The disregard of a precedent assumes two distinct forms, for the court
to which it is cited may either overrule it, or merely refuse to follow
it. Overruling is an act of superior jurisdiction. A precedent overruled
is definitely and formally deprived of all authority. It becomes null
and void, like a repealed statute, and a new principle is
authoritatively substituted for the old. A refusal to follow a
precedent, on the other hand, is an act of co-ordinate, not of superior
jurisdiction. Two courts of equal authority have no power to overrule
each other’s decisions. Where a precedent is merely not followed, the
result is not that the later authority is substituted for the earlier,
but that the two stand side by side conflicting with each other. The
legal antinomy thus produced must be solved by the act of a higher
authority, which will in due time decide between the competing
precedents, formally overruling one of them, and sanctioning the other
as good law. In the meantime the matter remains at large, and the law
uncertain.
§ 66. =Precedents Constitutive, not Abrogative.=
We have already seen the falsity of the theory that all precedents are
declaratory. We have seen that they possess a distinct and legally
recognised law-creating power. This power, however, is purely
constitutive and in no degree abrogative. Judicial decisions may make
law, but they cannot alter it, for where there is settled law already on
any point the duty of the judges is to apply it without question, and
they have no authority to substitute for it law of their own making.
Their legislative power is strictly limited to supplying the vacancies
of the legal system, to filling up with new law the gaps which exist in
the old, to supplementing the imperfectly developed body of legal
doctrine.
This statement, however, requires two qualifications. In the first
place, it must be read subject to the undoubted power of the courts to
overrule or disregard precedents in the manner already described. In its
practical effect this is equivalent to the exercise of abrogative power,
but in legal theory it is not so. The overruling of a precedent is not
the abolition of an established rule of law; it is an authoritative
denial that the supposed rule of law has ever existed. The precedent is
so treated not because it has made bad law, but because it has never in
reality made any law at all. It has not conformed to the requirements of
legal efficacy. Hence it is that the overruling of a precedent, unlike
the repeal of a statute, has retrospective operation. The decision is
pronounced to have been bad _ab initio_. A repealed statute, on the
contrary, remains valid and applicable as to matters arising before the
date of its repeal. The overruling of a precedent is analogous not to
the repeal of a statute, but to the judicial rejection of a custom as
unreasonable or as otherwise failing to conform to the requirements of
customary law.
In the second place, the rule that a precedent has no abrogative power
must be read subject to the maxim, _Quod fieri non debet, factum valet._
It is quite true that judges ought to follow the existing law whenever
there is any such law to follow. They are appointed to fulfil the law,
not to subvert it. But if by inadvertence or otherwise this rule is
broken through, and a precedent is established which conflicts with
pre-existing law, it does not follow from this alone that this decision
is destitute of legal efficacy. For it is a well-known maxim of the law
that a thing which ought not to have been done may nevertheless be valid
when it is done. If, therefore, a precedent belongs to the class which
is absolutely authoritative, it does not lose this authority simply
because it is contrary to law and ought not to have been made. No court,
for example, will be allowed to disregard a decision of the House of
Lords on such a ground; it must be followed without question, whether it
is in harmony with prior law or not. So also with those which are merely
conditionally authoritative. We have already seen that error is only one
of two conditions, both of which are requisite to render allowable the
disregard of such a precedent, and in this respect it makes no
difference whether the error consists in a conflict with law or in a
conflict with reason. It may well be better to adhere to the new law
which should not have been made than to recur to the old law which
should not have been displaced.
§ 67. =Grounds of the Authority of Precedents.=
The operation of precedents is based on the legal presumption of the
correctness of judicial decisions. It is an application of the maxim,
_Res judicata pro veritate accipitur._ A matter once formally decided is
decided once for all. The courts will listen to no allegation that they
have been mistaken, nor will they reopen a matter once litigated and
determined. That which has been delivered in judgment must be taken for
established truth. For in all probability it is true in fact, and even
if not, it is expedient that it should be held as true none the less.
_Expedit reipublicae ut sit finis litium._ When, therefore, a question
has once been judicially considered and answered, it must be answered in
the same way in all subsequent cases in which the same question again
arises. Only through this rule can that consistency of judicial decision
be obtained, which is essential to the proper administration of justice.
Hence the effect of judicial decisions in excluding the _arbitrium
judicis_ for the future, in providing predetermined answers for the
questions calling for consideration in future cases, and therefore in
establishing new principles of law.
The questions to which judicial answers are required are either
questions of law or of fact. To both kinds the maxim, _Res judicata pro
veritate accipitur_, is applicable. In the case of questions of law,
this maxim means that the court is presumed to have correctly
ascertained and applied the appropriate legal principle. The decision
operates, therefore, as proof of the law. It is, or at all events is
taken to be, a declaratory precedent. If the law so declared is at all
doubtful, the precedent will be worth preserving as useful evidence of
it. But if the law is already clear and certain, the precedent will be
useless; to preserve it would needlessly cumber the books of reports,
and it will be allowed to lapse into oblivion.
In the case of questions of fact, on the other hand, the presumption of
the correctness of judicial decisions results in the creation of new
law, not in the declaration and proof of old. The decision becomes, in a
large class of cases, an original precedent. That is to say, the
question thus answered ceases to be one of fact, and becomes for the
future one of law. For the courts are now provided with a predetermined
answer to it, and it is no longer a matter of free judicial discretion.
The _arbitrium judicis_ is now excluded by one of those fixed and
authoritative principles which constitute the law.
For example, the meaning of an ambiguous statute is at first a pure
question of fact. When for the first time the question arises whether
the word “cattle” as used by the statute includes horses, the court is
bound by no authority to determine the matter in one way or the other.
The occasion is one for the exercise of common sense and interpretative
skill. But when the question has once been decided, it is for the future
one of law and no longer one of fact; for it is incumbent on the courts
in subsequent cases to act on the maxim _Res judicata pro veritate
accipitur_, and to answer the question in the same way as before.
The operation of original precedents is, therefore, the progressive
transformation of questions of fact into questions of law. _Ex facto
oritur jus._ The growth of case-law involves the gradual elimination of
that judicial liberty to which it owes its origin. In any system in
which precedents are authoritative the courts are engaged in forging
fetters for their own feet. There is of course a limit to this process,
for it is absurd to suppose that the final result of legal development
will be the complete transformation of all questions of fact into
questions of law. The distinction between law and fact is permanent and
essential. What, then, is the limit? To what extent is precedent capable
of effecting this absorption of fact into law?
In respect of this law-creating operation of precedents, questions of
fact are divisible into two classes. For some of them do, and some do
not, admit of being answered _on principle_. The former are those the
answer to which is capable of assuming the form of a general principle:
the latter are those the answer to which is necessarily specific. The
former are answered by way of abstraction, that is to say, by the
elimination of the immaterial elements in the particular case, the
result being a general rule applicable not merely to that single case,
but to all others which resemble it in its essential features. The other
class of questions consists of those in which no such process of
abstraction, no such elimination of immaterial elements, as will give
rise to a general principle, is possible. The answer to them is based on
the circumstances of the concrete and individual case, and therefore
produces no rule of general application. The operation of precedent is
limited to one only of these classes of questions. Judicial decisions
are a source of law only in the case of those questions of fact which
admit of being answered on principle. These only are transformed by
decision into questions of law, for in this case only does the judicial
decision give rise to a rule which can be adopted for the future as a
rule of law. Those questions which belong to the other class are
permanently questions of fact, and their judicial solution leaves behind
it no permanent results in the form of legal principles.
For example, the question whether the defendant did or did not make a
certain statement is a question of fact, which does not admit of any
answer save one which is concrete and individual. It cannot be answered
on principle. It necessarily remains, therefore, a pure question of
fact; the decision of it is no precedent, and establishes no rule of
law. On the other hand, the question whether the defendant in making
such a statement was or was not guilty of fraud or negligence, though it
may be equally a question of fact, nevertheless belongs to the other
class of such questions. It may well be possible to lay down a general
principle on a matter such as this. For it is a matter which may be
dealt with _in abstracto_, not necessarily _in concreto_. If, therefore,
the decision is arrived at on principle, it will amount to an original
precedent, and the question, together with every other essentially
resembling it, will become for the future a question of law,
predetermined by the rule thus established.
A precedent, therefore, is a judicial decision which contains in itself
a principle. The underlying principle which thus forms its authoritative
element is often termed the _ratio decidendi_. The concrete decision is
binding between the parties to it, but it is the abstract _ratio
decidendi_ which alone has the force of law as regards the world at
large. “The only use of authorities or decided cases,” says Sir George
Jessel, “is the establishment of some principle, which the judge can
follow out in deciding the case before him.”[165] “The only thing,” says
the same distinguished judge in another case, “in a judge’s decision
binding as an authority upon a subsequent judge is the principle upon
which the case was decided.”[166]
This is the true significance of the familiar contrast between authority
and principle. It is often said by judges that inasmuch as the matter
before them is not covered by authority, they must decide it upon
principle. The statement is a sure indication of the impending
establishment of an original precedent. It implies two things: first,
that where there is any authority on the point, that is to say, where
the question is already one of law, the duty of the judge is simply to
follow the path so marked out for him; and secondly, that if there is no
authority, and if, therefore, the question is one of pure fact, it is
his duty, if possible, to decide it upon principle, that is to say, to
formulate some general rule and to act upon it, thereby creating law for
the future. It may be, however, that the question is one which does not
admit of being answered either on authority or on principle, and in such
a case a specific or individual answer is alone possible, no rule of law
being either applied or created.[167]
Although it is the duty of courts of justice to decide questions of fact
on principle if they can, they must take care in this formulation of
principles to limit themselves to the requirements of the case in hand.
That is to say, they must not lay down principles which are not required
for the due decision of the particular case, or which are wider than is
necessary for this purpose. The only judicial principles which are
authoritative are those which are thus relevant in their subject-matter
and limited in their scope. All others, at the best, are of merely
persuasive efficacy. They are not true _rationes decidendi_, and are
distinguished from them under the name of _dicta_ or _obiter dicta_,
things said by the way. The prerogative of judges is not to make law by
formulating and declaring it—this pertains to the legislature—but to
make law by applying it. Judicial declaration, unaccompanied by judicial
application, is of no authority.
§ 68. =The Sources of Judicial Principles.=
Whence, then, do the courts derive those new principles, or _rationes
decidendi_, by which they supplement the existing law? They are in truth
nothing else than the principles of natural justice, practical
expediency, and common sense. Judges are appointed to administer
justice—justice according to law, so far as the law extends, but so far
as there is no law, then justice according to nature. Where the civil
law is deficient, the law of nature takes its place, and in so doing
puts on its character also. But the rules of natural justice are not
always such that any man may know them, and the light of nature is often
but an uncertain guide. Instead of trusting to their own unguided
instincts in formulating the rules of right and reason, the courts are
therefore wisely in the habit of seeking guidance and assistance
elsewhere. In establishing new principles, they willingly submit
themselves to various persuasive influences which, though destitute of
legal authority, have a good claim to respect and consideration. They
accept a principle, for example, because they find it already embodied
in some system of foreign law. For since it is so sanctioned and
authenticated, it is presumably a just and reasonable one. In like
manner the courts give credence to persuasive precedents, to judicial
_dicta_, to the opinions of text-writers, and to any other forms of
ethical or juridical doctrine which seem good to them. There is,
however, one source of judicial principles which is of special
importance, and calls for special notice. This is the analogy of
pre-existing law. New rules are very often merely analogical extensions
of the old. The courts seek as far as possible to make the new law the
embodiment and expression of the spirit of the old—of the _ratio juris_,
as the Romans called it. The whole thereby becomes a single and
self-consistent body of legal doctrine, containing within itself an
element of unity and of harmonious development. At the same time it must
be remembered that analogy is lawfully followed only as a guide to the
rules of natural justice. It has no independent claim to recognition.
Wherever justice so requires, it is the duty of the courts, in making
new law, to depart from the _ratio juris antiqui_, rather than servilely
to follow it.
It is surprising how seldom we find in judicial utterances any explicit
recognition of the fact that in deciding questions on principle, the
courts are in reality searching out the rules and requirements of
natural justice and public policy. The measure of the prevalence of such
ethical over purely technical considerations is the measure in which
case-law develops into a rational and tolerable system as opposed to an
unreasoned product of authority and routine. Yet the official utterances
of the law contain no adequate acknowledgment of this dependence on
ethical influences. “The very considerations,” it has been well said,
“which judges most rarely mention, and always with an apology, are the
secret root from which the law draws all the juices of life.”[168] The
chief reason of this peculiarity is doubtless to be found in the
fictitious declaratory theory of precedent, and in the forms of judicial
expression and reasoning which this theory has made traditional. So long
as judges affect to be looking for and declaring old law, they cannot
adequately express the principles on which they are in reality making
new.
§ 69. =Respective Functions of Judges and Juries.=
The division of judicial functions between judge and jury creates a
difficulty in the theory of precedent which requires some consideration.
It is commonly said that all questions of fact are for the jury, and all
questions of law for the judge. But we have already seen that original
precedents are answers to questions of fact, transforming them for the
future into questions of law. Are such precedents, then, made by juries
instead of by judges? It is clear that they neither are nor can be. No
jury ever answers a question on principle; it gives decisions, but no
reasons; it decides _in concreto_, not _in abstracto_. In this respect
the judicial action of juries differs fundamentally from that of judges.
The latter decide on principle, whenever this is possible; they
formulate the _ratio decidendi_ which underlies their decision; they
strive after the general and the abstract, instead of adhering to the
concrete and the individual. Hence it is that the decision of a judge
may constitute a precedent, while that of a jury cannot. But in
composite tribunals, where the jury decides the facts and the judge the
law, how does the judge obtain any opportunity of establishing
precedents and creating new law? If the matter is already governed by
law, it will of course fall within his province; but if it is not
already so governed, is it not a pure question of fact which must be
submitted to the jury, to the total destruction of all opportunity of
establishing any precedent in respect of it? The truth of the matter is
that, although all questions of law are for the judge, it is very far
from being true that all questions of fact are for the jury. There are
very extensive and important portions of the sphere of fact which fall
within the jurisdiction of the judge, and it is within those portions
that the law-creating operation of judicial decisions takes place. No
jury, for example, is ever asked to interpret a statute or, speaking
generally, any other written document. Yet unless there is already some
authoritative construction in existence, this is pure matter of fact.
Hence that great department of case-law which has its origin in the
judicial interpretation of statute law. The general rule—consistently
acted on, though seldom expressly acknowledged—is that a judge will not
submit to a jury any question which he is himself capable of answering
_on principle_. Such a question he answers for himself; for since it can
be answered on principle, it provides a fit occasion for the
establishment of a precedent and a new rule of law. It _ought_ to be a
matter of law, and can only become what it ought to be, by being kept
from the jury and answered _in abstracto_ by the judge. The only
questions which go to a jury are those questions of fact which admit of
no principle, and are therefore the appropriate subject-matter of those
concrete and unreasoned decisions which juries give.[169]
We have said that this rule, though acted on, is not expressly
acknowledged. The reason is that judges are enabled to avoid the
acknowledgment through recourse to the declaratory theory of precedent.
As between judge and jury this theory is still in full force and effect,
although when the rights and privileges of juries are not concerned, the
courts are ready enough at the present day to acknowledge the essential
truth of the matter. As between judge and jury, questions of fact are
withdrawn from the exclusive cognizance of the latter by means of the
legal fiction that they are already questions of law. They are treated
proleptically as being already that which they are about to become. In a
completely developed legal system they would be already true questions
of law; the principle for their decision would have been already
authoritatively determined. Therefore the judges make bold to deal with
them as being already that which they ought to be, and thus the making
of the law by way of precedent is prevented from openly infringing upon
the rights of juries to decide all questions which have not already been
decided by the law.
SUMMARY.
Precedents { Declaratory—evidence of old law.
{ Original—sources of new law.
The declaratory theory of precedent.
{ Authoritative.
{ { Foreign decisions.
Precedents { Persuasive { Decisions in other parts of the Empire.
{ { Privy Council decisions.
{ { Judicial dicta.
{ Decisions of superior Court.
{ Absolutely authoritative { Decisions of House of Lords.
Precedents { { Decisions of Court of Appeal.
{ Conditionally authoritative—All others.
Conditions of the disregard of a precedent.
{ Contrary to law.
1. Decisions erroneous { Unreasonable.
2. Rejection of it not mischievous as unsettling the law.
Effect of lapse of time on precedents.
Distinction between overruling and refusing to follow.
Precedents constitutive and not abrogative.
Qualifications of the rule.
Ground of the authority of precedent.
The progressive transformation of fact into law.
_Rationes decidendi._
The determination of questions on principle and on authority.
Judicial _dicta_ contrasted with judicial decisions.
Sources of judicial principles.
Respective functions of judge and jury.