¹ StAugustine, , Confessions, ed. Outler, A. C. (Philadelphia 1955),Google Scholar Book 11, Chap. 14 et seq.

² Lord Lloyd of Hampstead, Introduction to Jurisprudence, 4th ed. (London 1979), p. 821Google Scholar and Allen, C.K., Law in the Making, 7th. ed. (Oxford 1964), p. 243.Google Scholar

³ Montpensier, Roy L. Stone-de, “Logic and Law: The Precedence of Precedents” (1967) 51Google Scholar Minnesota L.R. 655; Hicks, J. C., “The Liar Paradox in Legal Reasoning” (1971) 29 C.L.J. 275.Google Scholar

⁴ [1898] A.C. 375. I follow the precedent of referring to the appellant by this incorrect, but pleasantly pleonastic name. Correct is “London Tramways Ltd.”

⁵ Salmond on Jurisprudence, 11th ed. (London 1957), pp. 187–188.Google Scholar

⁶ [1966] 1 W.L.R. 1234.

⁷ Lord Diplock's phrase was “one-man crusade”: see Davis v. Johnson [1979] A.C. 264, 325.Google Scholar

⁸ Denning, Lord, The Discipline of Law (London 1979), p. 314.Google Scholar

⁹ e.g., in Broome v. Cassell and Co. Ltd. [1971] 2 Q.B. 354, 381;Google ScholarSchorsch Meier G.m.b.H. v. Hennin [1975] 1 Q.B. 416, 425;Google ScholarHayward v. Thompson [1982] Q.B. 47, 60.Google Scholar A commentary on the last-named case is contained in Denning, Lord, What Next in the Law (London 1982), pp. 204–207.Google Scholar

¹⁰ Cross, R., “The House of Lords and the Rules of Precedent” in Hacker, P. and Raz, J. (eds.), Law, Morality and Society, Essays in Honour of H. L. A. Hart (Oxford 1977), p. 145.Google Scholar

¹¹ For an account of Lord Denning's contribution to this aspect of the debate, see H. Carty, “Precedent and the Court of Appeal: Lord Denning's views explored” (1981) 1 Legal Studies 68.

¹² W. and J. B. Eastwood Ltd. v. Herrod [1968] 2 Q.B. 923, 934, per Lord Denning M.R.Google Scholar

¹³ e.g., Lord Hailsham of Marylebone in Cassell and Co. Ltd. v. Broome [1972] A.C. 1027, 1054.Google Scholar

¹⁴ Evans, P. J., “The Status of Rules of Precedent” (1982) 41 C.L.J. 162.Google Scholar

¹⁵ The passages cited by Evans are in London Street Tramways v. L.C.C. [1898] A.C. 375, 379,Google Scholarper Halsbury, Lord; Young v. Bristol Aeroplane Co. Ltd. (1944) K.B. 718, 729,Google Scholarper Greene, Lord; R. v. Taylor [1950] 2 K.B. 368, 371, per Lord Goddard.Google Scholar

¹⁶ Dworkin, R., Taking Rights Seriously (Cambridge, Mass. 1977), p. 111.Google Scholar

¹⁷ Davis v. Johnson [1979] A.C. 264, 281–282.Google Scholar

¹⁸ See Paterson, A., The Law Lords (London 1982), pp. 150–151.CrossRefGoogle Scholar

¹⁹ Evans, P. J., supra, n. 14, at p. 166.Google Scholar

²⁰ Supra, n. 6.

²¹ Stone, Roy, “The Precedence of Precedents” (1968) 26 C.L.J. 35.Google Scholar

²² Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718.Google Scholar

²³ Davis v. Johnson [1979] A.C. 264, 328.Google Scholar

²⁴ Goldstein, Laurence, “Four Alleged Paradoxes in Legal Reasoning” (1979) 38 C.L.J. 373.Google Scholar

²⁵ These are the acts of speech standardly performed in using sentences. A sentence so used has an illocutionary force, e.g., the force of a question, the force of a protest, etc. See Austin, J. L., How to do Things with Words (Oxford 1962), p. 94.Google Scholar

²⁶ To my knowledge, the first person to draw attention to tflis incompletability of such descriptions was the American logician C. S. Peirce. See Peirce Archive M. S. 342 (Houghton Library, Harvard University).

²⁷ Evans, P. J., supra, n. 14, at p. 174.Google Scholar

²⁸ See Kretzmann, N. et al. (eds.), The Cambridge History of Later Mediaeval Philosophy (Cambridge 1982), p. 248.CrossRefGoogle Scholar

²⁹ i.e., the effect achieved by saying something. See Austin, J. L., op. cit., p. 101.Google Scholar

³⁰ Evans, P. J., supra, n. 14, at p. 173.Google Scholar

³¹ A warning should be made here about the possibility of a confusion over terminology. “Rule of Recognition” is a term introduced by H. L. A. Hart. Evans's fundamental rule is what Hart would call a “rule of change” and, in Hart's theory, rules of change are closely connected to, but are not to be identified with rules of recognition. See Hart, H. L. A., The Concept of Law (Oxford 1961), p. 93.Google Scholar

³² For a similar objection to Hart's “rule of recognition,” see Dworkin, , op. cit., p. 42.Google Scholar

³³ Hart, , op. cit., p. 120 et seq.Google Scholar

³⁴ “1966 and All That! Loosing the Chains of Precedent” (1969) 69 Columbia L.R. 1162, 1165. See also Eekelaar, J. M., Chap. 2 of Simpson, A. W. B. (ed.), Oxford Essays in Jurisprudence (Second Series) (Oxford 1973), p. 33.Google Scholar For a thorough study of this issue, see Wesley-Smith, P., “English Practice and Procedure in Hong Kong” (1979) 9 Hong Kong L.J. 255.Google Scholar

³⁵ For an interesting example of a divergent interpretation of the judges‘ intentions with respect to their announcement “This announcement is not intended to affect the use of precedent outside the House of Lords,” see Denning, Lord, The Discipline of Law, p. 297.Google Scholar

³⁶ Dworkin, R., op. cil., p. 112.Google Scholar On occasion, the ratio of a dissenting judge is subsequently recognised to be sound and becomes the precedent—see e.g., Candler v. Crane, Christmas and Co. [1951] 2 K.B. 164;Google ScholarHedley Byrne and Co. Ltd. v. Heller and Partners Ltd. [1964] A.C. 465.Google Scholar

³⁷ See Lyons, D., “Moral Aspects of Legal Theory” (1982) 7 Midwest Studies in Philosophy 223.CrossRefGoogle Scholar

³⁸ See MacCormick, Neil, Legal Reasoning and Legal Theory (Oxford 1978), pp. 223–224.Google Scholar

³⁹ See Paterson, A., op. cit., pp. 14–20, 149.Google Scholar

⁴⁰ Paterson, A., op. cit., pp. 122–153, 201–212.Google Scholar

⁴¹ Sometimes it is no easy matter to determine just which doctrine prevails. Was the doctrine that the House of Lords is bound by its previous decisions established in Beamish v. Beamish (1859–1861) 9 H.L.C. 274 and not in London Street Tramways,Google Scholar as P. J. Evans maintains (op. cit., at p. 167)Google Scholar, or did Ridsdale v. Clifton (1877) 2 P.D. 276Google Scholar reverse the doctrine, only for another reversal to be wrought by London Street Tramways?

⁴² “ … a declaration of what, in the opinion of this House, the law is will be largely influenced by the individual views of your Lordships recording what should be the law.” Edmund-Davies, Lord in Hoskyn v. Metropolitan Police Commissioner [1979] A.C. 474, 499.Google Scholar

⁴³ See Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718,Google Scholar where decisions given per incuriam are explicitly identified as exceptions to the general proposition that previous decisions bind the Court of Appeal.

⁴⁴ The Discipline of Law, pp. 305–307;Google ScholarDavis v. Johnson [1979] A.C. 264, 270–271.Google Scholar

⁴⁵ Davis v. Johnson [1979] A.C. 264, 274;Google Scholar see also MacCormick, Neil, Legal Reasoning and Legal Theory (Oxford 1978), pp. 137–138.Google Scholar

⁴⁶ “Judges and Lawmakers” (1976) 39 M.L.R. 1, 10.Google Scholar

⁴⁷ “The Law and the Reasonable Man” (1968) 54 Proceedings of the British Academy 191, 193.Google Scholar

⁴⁸ See Shaw v. D.P.P. [1962] A.C. 220, 281 and “The Judge as Law Maker” (1972) 12 J.S.P.T.L. 22, 23.Google Scholar

⁴⁹ Selby-Bigge, L. A. (ed.), A Treatise of Human Nature (Oxford 1888), pp. 469–470Google Scholar

⁵⁰ The general problem of retrospectivity is not under discussion here. We are considering only the inevitable retrospective element in an instant case where either a new law is created or where an established precedent is jettisoned.

⁵¹ See, e.g., Scruttons Ltd. v. Midland Silicones [1962] A.C. 446, 467–468,Google Scholarper Simonds, Viscount; Dworkin, R., “Hard Cases” (1975) 88 Harv.L.Rev. 1057, 1061.Google Scholar

⁵² Graham, G., “What is Special about Democracy?” (1983) 92 Mind 94, 99.CrossRefGoogle Scholar

⁵³ See J. Skelly Wright, “Law and the Logic of Experience: Reflections on Denning, Devlin, and Judicial Innovation in the British Context” (1980) 33 Stanford L.R. 179, 196. Skelly Wright further argues for the stronger conclusion that it is by virtue of their superior competence that the judiciary is entitled to shape, rather than merely reflect, changes in public opinion.

⁵⁴ “Judges and Policy” (1980) 15 Israel L.R. 346, 368.Google Scholar

⁵⁵ See Cassell and Co. Ltd. v. Broome [1972] A.C. 1027, 1083, 1115, 1133,Google Scholarper Lords Hailsham, Reid, Wilberforce and Kilbrandon; DPP. v. Nock [1978] A.C. 979, 992,Google Scholarper Lord Scarman (his colleagues concurring) and Lim Poh Choo v. Camden and Islington Area Health Authority [1980] A.C. 174, 189,Google Scholarper Lord Scarman (Lords Diplock, Dilhorne and Simon concurring).

⁵⁶ See Dias, R. W. M., Jurisprudence, 4th ed. (London 1976), p. 279.Google Scholar

⁵⁷ A consequence of P. J. Evans's view, one to which he explicitly commits himself (op. cit., pp. 178–179), is that it is presently the law that the Court of Appeal has the power to change its current rules on precedent. Numerous authorities have affirmed that it has no such power but, in Evans's view, if reason requires that it have the power (even if it is not generally recognised that this is what reason requires) then the law is that it does. This conclusion seems incorrect. On the view I have defended in Section III, it is not the reason but the effect of those reasons, i.e., their wide acceptance, that contributes to determining what is the law.

⁵⁸ “Precedent in the Court of Appeal” (1980) 43 M.L.R. 136.Google Scholar

⁵⁹ Lord Denning is, of course, the main proponent of the argument against the proposition. See Conway v. Rimmer [1967] 1 W.L.R. 1031;Google ScholarBoys v. Chaplin [1968] 2 Q.B. 1;Google Scholar W. and J. B. Eastwood v. Herrod [1968] 2 Q.B. 923;Google ScholarGallie v. Lee [1969] 2 Ch. 17;Google ScholarHanning v. Maitland (No. 2) [1970] 1 Q.B. 580;Google ScholarBarrington v. Lee [1971] 3 All E.R. 1231;Google ScholarFarrell v. Alexander [1976] 2 All E.R. 721;Google ScholarDavis v. Johnson [1979] A.C. 264.Google Scholar

⁶⁰ Davis v. Johnson [1979] A.C. 264, 311.Google Scholar

⁶¹ Rickett is here endorsing the radical reform proposed by Professor Glanville Williams in a letter to The Times of 16 March 1978.

⁶² It appears to be the case that the Law Lords attach considerable importance to the value of having before them the opinions expressed by judges in the Court of Appeal. See e.g., United Marketing Co. v. Kara [1963] 1 W.L.R. 523, 524,Google Scholarper Hodson, Lord; National Bank of Greece S.A. v. Westminster Bank Executor and Trustee Co. Ltd. [1971] A.C. 945, 957,Google Scholarper Hailsham, Lord; General Electric Co. v. The General Electric Co. Ltd. [1972] 2 All E.R. 507, 512, per Lord Diplock.Google Scholar

⁶³ This point was stressed by Lord Reid in the conclusion of his well-known address “The Judge as Law Maker” (supra, n. 48).

⁶⁴ Significant improvements on earlier versions of this article resulted from the advice of Peter Wesley-Smith, Roda Mushkat and Mark Fisher.