'Do precedents create rules?' by Grant Lamond in (2005) 11(1) Legal Theory 1-26 comments
The doctrine of precedent is one of the most distinctive features of the modern common law. Understanding the operation of precedent is important for our theorising about the nature of law, since any adequate theory must be compatible with the practice. In this paper I will explore the conventional view of precedent, endorsed by practitioners and many legal philosophers alike. I will argue that, for all its attractions, it provides a distorted view of the nature of precedent. The distortion grows out of the basic assumption that precedents create rules, and thus that the common law can be understood as a form of rule-based decision-making. Instead, the common law is a form of case-by-case decision-making, and the doctrine of precedent constrains this decision-making by requiring later courts to treat earlier cases as correctly decided. The relevance of earlier cases is not well understood in terms of rules— they are better understood as a special type of reason. This is not simply a technical debate about the proper way to capture the way precedent operates in legal reasoning: how we characterise precedent matters to our understanding of the function of precedent in the common law. The rule-based model suggests that the function of precedent is to settle the law so that it can guide individuals and the courts. The reason-based model suggests that the function is to compensate for the erosion of consensus in the common law by simultaneously fixing starting points for decision- making without giving the judiciary law-making power.
I will represent the conventional view of precedent in terms of four propositions. My claim is not that every practitioner or theorist would endorse every detail of these propositions, but that they capture fairly well a widely held view. These are only very rough characterisations, which different theorists would expand upon in different ways, but they are sufficient as a starting point for discussion. The four propositions are these:
(1) Precedents lay down rules in their rationes, and such rules are binding in later cases whose facts fall within the scope of those rules.
(2) Some later courts have the power to overrule precedents, but all later courts have the power to distinguish precedents, which amounts to a limited power to modify the rule laid down in the precedent case.
(3) The application of the rule in later cases is determined by the precedent court’s justification(s) for the rule.
(4) The function of the doctrine of precedent is to create new legal rules to settle uncertainty in the law, so as to provide guidance to individuals and the courts.
On the conventional view, then, what is binding in a precedent is the ratio, and the ratio is a rule that can be applied in later situations to guide individuals and future courts. The practice of distinguishing, whereby later courts are entitled to avoid the application of the precedent although the facts fall within the scope of the ratio, is thus a power to modify the ratio—a power subject to strict limits. The application of the rule laid down in the precedent’s ratio is to be determined by reference to the justification given by the court for its holding—it must be interpreted in accordance with the intentions of the maker of the rule. All in all, then, precedents give rise to a form of rule-based decision-making which differs from other forms in two minor ways: (i) the ratio has to be constructed from the judgment in a case, and is not based upon a canonical formulation by the court; and (ii) later courts have a limited power to modify the ratio that applies to the case before it.
The conventional view of precedent is not without its philosophical critics. They argue that the fact that the ratio of a precedent is not based upon a canonical formulation given by the court, but must be constructed from the judgment as a whole, provides a basis for denying that the ratio constitutes the binding part of a precedent at all. Instead of there being a binding legal rule, it is argued, later courts are bound by the principles which justify the result reached in the earlier case. On one approach later courts are bound by the principles the precedent court itself used to justify the result1; on another approach later courts are bound by whatever principles provide the best justification for the outcomes reached in the body of cases to which the precedent belongs. Although I agree with these critics that precedents do not lay down rules, my argument does not proceed on the basis that rationes play no independent role in legal reasoning.
Instead, what is distinctive about the reason-based view I am proposing is that it regards a precedent as a decision relative to a particular factual context. The ratio points to those features of the case which provide sufficient reason(s) for the result, given that context. Unlike a rule, it does not attempt to pre-empt what should be done in similar cases where the facts differ — that has to be decided on the balance of reasons present in the latter case. This is why the basic obligation under the doctrine of precedent is either to follow or distinguish the earlier decision — a disjunctive obligation. Distinguishing and following are simply two sides of the same coin: case-by-case decision-making is the process of determining whether or not a precedent should be followed given the differences between the case before the court and the precedent case. Furthermore, in deciding whether to follow or distinguish, the later court is not asking what the precedent court would have decided: it is making its own assessment of the merits of the situation. Later courts, then, are not bound by rationes—they are bound by precedents; and they are not bound to follow precedents—they are bound to determine whether they should be followed or distinguished.
The starting point for a reason-based account then is a reflection upon what is, in truth, the fundamental requirement of the common law doctrine of precedent, viz. that later courts treat earlier cases as correctly decided on their facts. What flows from this requirement is the necessity of reaching a decision in a later case which is consistent with the correctness of the earlier decision. The question is what sort of ‘consistency’ does this entail? The conventional view interprets consistency in terms of the use of the same ‘rule’ as that relied upon in the precedent case. Those who demur on the significance of rationes interpret it as entailing the application of the same set of principles which justified the preceding case(s). The reason-based view requires that later courts accept the correctness of the precedent court’s assessment of the balance of reasons on the facts of the precedent case.
Why prefer an account of precedent in terms of reasons rather than rules? Essentially because there are a range of features of common law reasoning which are more intelligible from this perspective, most notably the existence of the practice of distinguishing. But such an account also casts light on the following features: the lack a fixed, canonical formulation for rationes; the significance of the facts of the case and the detailed attention that is often given to them in common law adjudication; the persistence of theoretical disagreement on the significance of the precedent court’s justification for its ratio; and the question of how the modern doctrine of precedent fits into the history of the common law.
This paper is divided into three sections. In the first I examine the rule-based account in greater depth in order to demonstrate the difficulty of reconciling it with the practice of distinguishing. Although this is the fundamental stumbling block for the account, I also note a number of other features of the common law which sit uneasily with the idea that precedents lay down rules. In the second section I develop the account of precedent as case-by-case decision- making, explaining its similarities and dissimilarities to rule-based decision-making. I highlight various features of the common law which make case-by-case decision-making appear closer to rule- based decision-making than it really is. Finally, in the third section I turn to the function of the doctrine of precedent, and what can be learnt from the fact that precedents do not lay down rules.
Before proceeding, a few points are needed to delimit the scope of the paper. The first is that the focus of the paper is on those areas of the law primarily governed by the common law rather than statute. Although some points are raised on the nature of statutory interpretation, my interest is in the operation of the doctrine of precedent in the common law. Various adjustments would need to be made to extend the analysis to the role of precedent in statutory interpretation. The second clarification is that my focus will be on the uncomplicated situation in which a court delivers a single judgment providing a single ground for the result. I am not concerned with the complications which arise in legal practice from cases where there is no agreed majority judgment in favour of the result, or the judgment gives two separate but individually sufficient grounds for the result, or no reasons at all are given by the court. These questions are important for practitioners, but the key theoretical questions arise from the uncomplicated single judgment case. Finally, the aim of the paper is to provide a better understanding of the nature of precedent in the common law, rather than to discuss the possible relevance of this understanding for the debate about the fundamental basis of law. Despite the great interest of that debate, there is no simple or straightforward implication of the case-by-case analysis of precedent for theoretical claims such as the sources thesis or interpretivist accounts of law.
One final preliminary. For the sake of expository convenience, I have tried to use the following terms in a consistent manner in this paper. When I speak of a ‘case’, I mean a legal dispute which has or could be brought before a court. The ‘result’ of the case refers to the legal result of the case for those parties if brought before a court, viz. who won or lost, and what legal consequences flowed for the parties from that outcome. By ratio I mean what most (but by no means all) lawyers mean when they speak of the ratio of a court judgment, viz. the proposition of law which the decision authoritatively creates. The ‘justification’ for the ratio comprises all of those reasons given by the court in support of that proposition of law—it is the rationale for the ratio. And the court’s ‘decision’ refers to all three aspects of the court’s judgment: (a) the justification for (b) the proposition of law which contributes to (c) the result in the case. I use the term ‘precedent court’ and ‘precedent case’ to refer to the earlier court and dispute; and I speak of ‘later courts’ and ‘later cases’ to refer to those courts and disputes which are bound by the precedent.
