Precedent as a Source of Law

Abstract

Abstract We have now completed the account of the operation of the rules of precedent summarized on p. 6. These rules generate what may not ineptly be described as ‘jurisprudential’ problems of their own. Are they rules of law? Can the rules of precedent be based on precedent? Why does the idea of the prospective overruling of a judicial decision tend to be anathema to an English lawyer when retrospective legislation is equally abhorrent to him? Brief discussions of these questions will be found in Chapters VII and VIII. This chapter and Chapter VI are primarily concerned with problems posed by case-law generally. They would arise even if the English rules of precedent were very different from what they are. They stem from the older and more important rule that judges must have regard to case-law. In what sense is a judicial decision, i.e. a precedent, a source of law? Do decided cases throw any light on the question, raised by Austin, whether a custom is law before it is enforced by the courts? In what sense is custom subordinate to precedent and precedent to legislation? What is the nature of the joint operation of statute and precedent as sources of English law? These are the types of problem with which this chapter is concerned.