“To the timorous souls I would say in the words of William Cowper:
Ye fearful saints, fresh courage take,
The clouds ye so much dread
Are big with mercy and shall break
In blessings on your head.
Instead of ‘saints’ read ‘judges’. Instead of ‘mercy’ read ‘justice’. And you will find a good way to law making.”
As always, the legendary common law jurist Lord Denning, controversial ‘people’s judge’, expressed his judgement in its typical Denning fashion in the case of Siskina v Distos Compania Naviera SA. (1977) . The progressive development of the law, according to Denning in Candler v Crane, Christmas ; Co (1951) , is to be credited to the judicial creativity and courage of bold spirit; timorous souls showed blind allegiance to existing rules and precedent – the ‘dead hand of the past’ – and in doing so, served a sterile, not a constructive, role in the law, which will lead us back to “the reign of King Henry II” .
In the words of Lord Denning (then Denning LJ), “if we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both.” The position of Lord Denning was amplified by Lord Atkin in United Australia Ltd v Barclays Bank (1941) where he asserted that “when these ghosts of the past stand in the path of justice clanking their mediaeval chains, the proper course for the judge is to pass through them undeterred.”
As implicit in Lord Nicholls’ observation, the development of the common law has been going on since the reign of Henry II. Although the notion of precedent initially had more to do with procedural form than juridical substance, the concept of ‘stare decisis et non quieta movere’ which means ‘to stand by (or adhere to) decisions and not to disturb what is settled’, or in other words let sleeping dogs lie, is of very long standing.
More often than not, this doctrine was being described as the “life-blood of every legal system” and in practice, it refers to the fact that, within the hierarchical structure of the English courts, a decision of a superior court will be binding on any inferior court. In England, due to the Judicature Act of 1873 to 1875 , a proper judicial hierarchy of the courts was created allowing the decision of the House of Lords which is now the Supreme Court of England after the enactment of section 23 of the Constitutional Reform Act 2005 which begin its work on 1 October 2009 and was officially opened by the Queen on 16 October 2009, to be binding on all courts.
Colloquially, “the life of the law has not been logic; it has been experience.” per Oliver Wendell Holmes Jr. Miles Kingston put it rather more cynically in Punch: “judicial precedent means a trick which has been tried before successfully.” Evidently, the maxim of ‘like cases should be treated alike’ which was described by Lord Hoffman as a “general axiom of rational behaviour” , has been deeply embedded in the English law and judges are expected to “shrug his shoulder, bow to what he regards as inevitable and apply the law” . The law implicit in Lord Edmund Davies’ judgement are basically referred as ratio decidendi , which is Latin for ‘reasons for deciding’; it is the part of the decision which constitutes the binding precedent. Sir Rupert Cross and J. W. Harris, in the leading English monograph on precedent, define ratio decidendi as “any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.”
As Twining and Miers pointed out, “talk of finding the ratio decidendi of a case obscures the fact that the process of interpreting cases is not like a hunt for buried treasure, but typically involves an element of choice from a range of possibilities.” Evidently, there are some cases in which it is extremely difficult, if not possible, to ascertain precisely the ratio of the case, and to distinguish the ratio from obiter dicta, which is Latin for ‘other things said’; it is the part of the decision which constitutes the persuasive precedent. On the other hand, statement of law on points which are fully argued by counsel and considered by the judge, but which do not technically play any part in determining the result, are sometimes termed as ‘judicial dicta’.
Lord Asquith once recounted a joke: “the rule is quite simple: if you agree with the other bloke, you say it’s part of the ratio; if you don’t, you say it’s ‘obiter dictum’, with the implication that he is a congenital idiot.” It is generally perceived that in certain situations, the obiter dicta and judicial dicta are merely a smokescreen for judges to develop law, leading one to believe that “the common law is a living system of law, reacting to new events and new ideas, and so capable of providing the citizens of this country with a system of practical justice relevant to the times in which they live.”
This may be seen as an outcome of the declaratory theory of law, in which judges were seen as merely stating rather than making the law. Thus, the judges in the court that overrules a precedent made by a lower court are understood to be merely removing a mistaken understanding of what the law was, rather than actually changing that law. This has always been the practice that the House of Lord favoured, where they would be bound by its own decisions as it regarded ‘certainty in the law to be more important than individual hardship’. This stance was later reaffirmed in London Tramways Co v London County Council (1898) and was supported by several judges including Lord Talbot who opined that it is “much better to stick to the known general rules than to follow any one particular precedent which may be founded on reason unknown to us.”
The problems of reconciling the desire for certainty and stability on the one hand with the need for change on the other came more sharply into focus following the Practice Statement read by Lord Chancellor Gardiner, on behalf of all the Lords of Appeal in Ordinary, before judgements were delivered on 26 July 1966. However, it is pertinent to emphasise that the Practice Statement was not meant for the judiciary to usurp the legislators’ function and profane their own, but rather it was used by the judges when it ‘is right to do so’. Knowing that this change in the law might inflict great hardships on a number of people and at least would greatly affect their assumed legal rights, cases such as Jones v Secretary of State for Social Services (1972) had shown great reluctance in applying the Practice Statement despite the Law Lords had admitted that the previous precedent, Re Dowling (1967), as being aberrant, indeed as heretical. Instead of overruling it, the Law Lords prefer the approach of distinguishing it as they regarded that certainty would be impaired unless the practice of overruling was used sparingly.