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Cambridge Law Journal, 43(1), April 1984, pp. 108-110
Printed in Great Britain.

THE STATUS OF RULES OF PRECEDENT: A

BRIEF REPLY
JIM EVANS

I AM grateful to Laurence Goldstein and the editor for allowing me

this opportunity to make a brief reply to those parts of Goldstein's
article which discuss my own earlier article.'
It is one thing to show that a conception of a legal system is
logically coherent, and another to show that it provides an accurate
picture of a given legal system at a particular time. In essence, I
argued two things in my article: first, that there is a logically coherent
conception of case law which will reconcile the three propositions:
(i) that rules of precedent create straightforward duties of law, (ii)
that such rules cannot rest on their own authority, and (iii) that rules
of precedent can be changed; and, secondly, that a specific form of
this conception accurately reflects the composition of the common
law from the time-I suspect somewhere towards the middle of the
nineteenth century-when it first became accepted that single deci-
sions of higher courts are, in general, strictly binding on lower
courts. (By strictly binding I mean binding irrespective of merits,
and irrespective of the importance in terms of protecting those who
may have relied on the precedent of following the precedent.) It is
important to keep these two claims distinct, for as I was aware when
I wrote the article, it is a lively possibility that I might be right on
the first and wrong on the second. Let me, though, comment on
Goldstein's arguments as they apply to each.
On the first claim, Goldstein has identified a difficulty I did not
deal with. I argued that if rules of precedent can be legally changed
we must postulate as the fundamental rule of the system-so far as
it relates to this topic-not the rules of precedent themselves, but a
rule which gives those courts which can effect the change the power
to determine from time to time how precedents shall be employed.
I conceived of the (relevant) judges as legislators in this field, though
I also thought of them as being subject to various duties constraining
the exercise of their power. To meet objections, I pointed out that
obviously the power could only be exercised defuturo, so that judges
could not use it to undo what had been; and that it could not be
"The Status of Rules of Precedent" [19821 C.L.J. 162.
108
C.L.J. The Status of Rules of Precedent

employed to take away that very power itself through a ruling that
some decision holding that the power existed was not binding. The
first of these points I thought (wrongly it seems) met Goldstein's
criticism of this type of view as expressed in his earlier article. 2 But
I did not meet the criticism he has now expressed. This is that if an
exercise of the power is treated as a decision which is within the
scope of the decisions it itself applies to, it is logically incoherent in
the ways he outlines. I accept this. But the answer, obviously
enough, is that pronouncements on precedent do not apply to
themselves. They apply to decisions on more particular matters,
which they make either binding or no longer binding. It would be as
redundant for such a decision to apply to itself when making
decisions binding, as it would be for the legislature to add a clause
saying, "this statute shall be binding" when passing a statute. And
for such a decision to apply to itself when making decisions not
binding would plainly be silly.
Goldstein's comments, so far as they relate to the second claim,
raise difficult issues which can only be lightly sketched here. First,
a principle of method: the proper consideration of this type of claim
must, I believe, pursue to its conclusion the question what is the
prescriptive content of the law-i.e., that which determines what the
law-abiding judge (and citizen) should do-and not stop short of
any point with a mere description of existing practices. For one can
always ask why an individual judge should conform to existing
practices. Secondly, whether there was historically a power to change
the rules of precedent, and whether there is now, does matter:
looking backwards, because it is important to get a clear idea of
what has occurred; and for the present, because we need to know
whether the rules can be lawfully changed (parliamentary interven-
tion apart). The supposed foundational rule-supposing it to be the
correct basis for such a power-is therefore not a giant white turtle.
Nevertheless, one might certainly view the changes which have
occurred as a number of silent revolutions (in the sense that the
basic premises for a correct legal decision have changed). I was
influenced in rejecting this view by the thought that whatever account
one might have been given by a lawyer of the correct use of
precedents as a source of law prior to any of these changes, if one
had asked the question, "But what should be the position if the
House of Lords (or any other relevant court) were to declare a
contrary view?" one would, I assumed, have received the reply,
"Well, of course, then the position would be as the court had
declared it to be." I recognised that my sense of this as the
2 "Four Alleged Paradoxes in Legal Reasoning" [19791 C.L.J. 373, 389.
 The Cambridge Law Journal [19841

appropriate reply was based on a use of the common lawyer's

traditional resort to reason (as I bluntly defined it) as a source for
a legal solution on novel points: but I rejected the idea that reason
might be thought of as having been the sole ultimate source of this
part of the common law over the period under discussion. That
would be inconsistent with what seems to me an historical fact:
namely, that the proposition that lower courts are, exceptions apart,
strictly bound by decisions of higher courts has been accepted as a
basic premise of the system, and not one derived from any higher-
order premise framed in terms of reason, for upwards of 100 years.
Hence, I argued for a basic rule in this area which roughly framed
would read: apart from specified exceptions, lower courts are strictly
bound by decisions of higher courts except in those situations not
contemplated in the evaluations upon which this rule is based, where
the law shall be that which reason requires.
Goldstein seems to hint at a different view. This is that case law
is solely what reason requires, and that reason is to be applied not
to any generally accepted rules about precedent, but to the current
practices of the judges. On this view, the more general the practice
of following higher precedents the more reason any particular judge
has for doing so, for the more likely it will be that citizens and
lawyers will rely upon the judges following such precedents. The
trouble with this is that it does not square with the fact that for over
100 years it has been more or less universally accepted that the
responsibility of judges is to follow rules of precedent where they
apply, and not just to take account of a common practice of following
precedents.