10 October

Case Law and Precedent: How Courts Make Law

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Understanding Precedent

Precedent is an ancient concept. It involves laying down general principles for the future. When judges in higher courts give reasons for the legal rules they apply, these reasons become authoritative statements of law that later judges must follow as precedents.[1] This rule applies equally to decisions about statute interpretation, making precedent perhaps more important than statute itself, since judges determine what statutes mean.

Prerequisites for Precedent to Work

Two things must exist for precedent to operate effectively: First, a well-established judicial hierarchy. Second, reliable reports of decided cases.[2] Law reports provide authoritative legal statements. The rule is simple: courts lower in the hierarchy are bound by decisions of courts above them. A judgment becomes law that must be followed in subsequent cases with similar facts.

Two Approaches to Judicial Decision-Making

The Deductive Theory

Associated with codified systems, this theory assumes the legal rule for any case is fixed and certain from the beginning.[3] Judges simply apply this rule as justice requires without reference to their personal views. This works from the general to the particular—from general legal rules to specific circumstances. This is the essence of continental code systems, where everything is broadly set out, giving judges little scope to inject their own views.

The Inductive Theory

Characteristic of common law, this starts with the same objective of finding the applicable general rule but uses a wholly different method.[4] It works forward from particular to general—the reverse of the deductive system. The English judge must search for principles in the learning and work of previous judges and jurists, then apply them to particular facts. He’s always reasoning inductively and is bound by decisions of higher tribunals.

The Role of Judges: Two Competing Theories

The Declarative Theory

This presupposes judges don’t make law but merely declare it. Blackstone held this view in his commentaries, saying courts’ function is not to pronounce new law but to maintain and expound the old.[5] Bentham vigorously criticized this theory, and it never fully recovered from his attack.

The Realist Theory

Realists argue that when judges find law unclear on any point, they must make new law to fill the gap.[6] Whether they like it or not, they act like legislators. Refusing to innovate is as much a legislative act as the boldest decision. To pretend judges merely find law is idle—they make it, and for this purpose must consider policy arguments and questions of morality and justice, just as legislators would.

The Appellate Process: Review and Supervision

The appellate process has two related but different elements. Supervision involves laying down fresh precedents and updating old ones for lower courts’ guidance. It resolves cases embodying legal problems of high importance and difficulty.[7] Review corrects mistakes at first instance and maintains continuity and certainty in justice administration. It achieves justice in individual cases.

In England, supervision belongs to the House of Lords while review is for the Court of Appeal.[8] Only crucial cases of great public importance reach the House of Lords; most stop at the Court of Appeal. In Nigeria, the Supreme Court receives too many cases to give the detailed examination ideal for supervision, though it attempts both functions.

The House of Lords and Stare Decisis

The House of Lords sits at the pyramid’s apex, and its decisions bind all inferior courts including the Court of Appeal.[9] For over a century, the House of Lords maintained it was bound by its own decisions. This changed in 1966 with the Practice Statement issued by Lord Chancellor Gardiner.

The 1966 Practice Statement

The statement carefully balanced competing concerns: “Their lordships regard the use of precedents as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs as well as a basis for orderly development of legal rules. Their lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict proper development of the law. They propose therefore to modify their present practice and while treating former decisions of this House as normally binding to depart from a previous decision when it appears right to do so.”[10]

The statement recognizes two important needs: ensuring law is stable, and ensuring law is not static since it deals with a dynamic society. The problem is achieving equilibrium.[11]

Criticisms of Precedent

Difficulty in Extraction

In the forest of precedent, it’s easy not to see the wood for the trees. What constitutes precedent is found in the ratio decidendi (reasons for decision), not obiter dicta (things said by the way).[12] This approximates the distinction between essential and inessential.

Dependence on Accident of Litigation

Legal development depends on what cases happen to be brought. Important points may remain undecided simply because nobody brought an action on them.[13] An erroneous judgment may stand and acquire undeserved authority merely because the losing party couldn’t afford an appeal. Years later, similar circumstances arise, and an appeal finally corrects the error, but meanwhile the profession has been following an incorrect rule.

Inveterate Errors

Sometimes a legal error becomes too established for correction. As Lord Reid noted in Ross Smith v. Ross Smith (1963), overruling a precedent has retrospective operation, which is very different from repealing or altering a statute.[14] Since the precedent while it stood unreversed may have been cited in numerous cases, valuable properties may have been dealt with in reliance on it, and important contracts made on its strength. Justice may therefore require that the decision, though founded in error, shall stand inviolate nonetheless.

Precedent and Social Change

Since World War I, social change has accelerated beyond imagination, challenging the law powerfully and urgently.[15] Even before World War I, leading jurists and judges concurred that it was not only right but the duty of the judge to take note of fundamental changes in public opinion.

Thomas Hobbes in Leviathan presented a strong view against precedent: “No man’s error becomes his own law nor obliges him to persist in it. Neither for the same reason becomes it a law to other judges though sworn to follow it. Therefore, all the sentences of precedent cannot altogether make a law contrary to natural equity.”[16]

Lord Mansfield remarked in Jones v. Randall (1774): “The law of England would be a strange science indeed if it were decided upon precedents only.”[17]

Common law would not exist if great judges hadn’t periodically accepted the challenge of new social conditions and boldly laid down new principles. These revolutionary decisions are few but stand out as landmarks. Each symbolizes a new social epoch and provides foundations for hundreds of elaborating decisions.

Examples of Judicial Revolution

Rylands v. Fletcher (1868): Blackburn J. adapted tort liability principles to the expanding industrial enterprise era.[18] He collected, synthesized, and remolded several instances of liability into new law. Wigmore said the scattered instances had “wandered about unhoused and unshepherded except for casual attention in the pathless field of jurisprudence until they were met by the mastermind of Mr. Justice Blackburn who guided them to the safe fold where they have since rested.”[19]

Mercy Dock Trustees v. Gibbs (1866): Blackburn J. laid foundations for legal liability of public authorities, now critically important in the age of government enterprises.[20]

Nigerian Examples:

Fawehinmi v. Akilu (1987): The Supreme Court relaxed the locus standi rule as formulated in Adesanya v. President of the Federal Republic of Nigeria (1981).[21]

Ariori v. Elemo (1983): Justice Eso laid down principles governing waiver of fundamental human rights, identifying three types: those for citizen’s enjoyment alone (can be waived), those in which the public has interest (cannot be waived), and those affecting court processes (cannot be waived).[22]

Ways Case Law Develops

1. Granting New Remedies

Illustrated by the action of deceit granted in Parsley v. Freeman (1789).[23] The borderline between extending an old remedy and granting an entirely new one isn’t always easy to draw.

In Candler v. Crane, Christmas & Co. (1951), the question was whether Donoghue v. Stevenson should extend to negligent injury to economic interests.[24] Denning LJ favored boldly granting new remedies when common sense or social needs demand it: “This argument about the novelty of the action does not appeal to me in the least. It has been put forward in all the great cases which have been milestones of progress in our law and it has always or nearly almost been rejected. If you read the great cases of Ashbury v. White (1703), Parsley v. Freeman (1789), Donoghue v. Stevenson (1932), you will find that in each of them, the judges were divided in their opinion. On the one side, there were the timorous souls who were fearful of allowing a new cause of action. On the other side there were the bold spirits who were ready to allow it if justice so required. It was fortunate for the common law that the progressive view prevailed.”[25]

The majority took a more cautious approach. Asquith LJ said: “In the present state of our law, different rules still seem to apply to the negligent misstatement on the one hand and the negligent circulation or repair of chattels on the other and Donoghue’s case does not seem to me to have abolished these differences. I am not concerned with defending the existing state of the law or contending that it is strictly logical. It clearly is not but I am merely recording what I think it is. If this relegates me to the company of timorous souls, I must face that consequence with such fortitude as I can command.”[26]

Ten years after the Practice Statement, Scarman LJ emphasized stability in Farrell v. Alexander (1976): “Consistency is necessary to certainty—one of the great objectives of law. The Court of Appeal, at the very centre of our legal system is responsible for its stability, its consistency and predictability. The task of law reform which calls for wide ranging techniques of consultation and discussion that cannot be compressed into the forensic medium is for others.”[27]

In contrast, Denning LJ said: “I have often said that I do not think this court should be absolutely bound by its decisions any more than the House of Lords. I know it is said that when this court is satisfied that a previous decision of its own was wrong, it should not overrule it, but should apply it in this court and leave it to the House of Lords to overrule it. Just think what it means in this case, these ladies do not qualify for legal aid, they must go to the expense themselves of an appeal to the House of Lords to get the decision revoked. The expense may deter them and thus an injustice will be perpetrated.”[28]

Denning LJ was more successful when the Court of Appeal granted a deserted wife the right to continue occupation of a matrimonial home in which she had no legal ownership in Bendall v. McWhirter (1952), as modified in Westminster Bank v. Lee (1956).[29]

2. Molding Scattered Rules into Comprehensive Principles

Greater practical importance comes from molding different and scattered legal rules into broad comprehensive principles combining restatement, remolding, and making new law.[30] Rylands v. Fletcher is an outstanding example.

Though a long-established rule won’t likely be upset, this consideration will be overruled where justice demands it. In the Fibrosa Case (1943), the House of Lords wasn’t deterred by the rule in Chandler v. Webster (1904) that had prevailed for nearly forty years.[31]

Lord Simons LC concluded: “These are weighty considerations but I do not think they ought to prevail in the circumstances of this case, over our primary duty of doing our utmost to secure that the law on this important matter is correctly expounded and applied.”[32] The House of Lords held: “The man who pays money in advance on a contract which is frustrated and receives nothing for his payment is entitled to recover it back.”[33]

Lord Atkin said in United Australia Ltd v. Barclays Bank Ltd (1941): “When these ghosts of the past stand in the path of justice clanking their medieval chains, the proper course for the judge is to pass through them undeterred.”[34]

Similarly, Denning LJ in Parker v. Parker (1959): “What is the argument on the other side? Only this that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on and that will be bad for both.”[35]

In Malone v. Metropolitan Police Commissioner (1979), Megarry VC said: “I am not unduly troubled by the absence of English authority, there has to be a first time for everything and if the principles of English law are not least, analogies from existing rules together with the requirements of justice and common sense pointed firmly to such a right existing, then, I think the courts should not be deterred from recognising the right.”[36]

Public Policy: The Unruly Horse

Public policy has influenced English law more than appears on superficial examination. It may be described as the fundamental agent of legal development.[37] Judges see public policy as an “unruly horse”—when you ride it, you don’t know where it will land you.

Lord Wright in Fender v. Mildmay (1938): “These are considerations of public interest which require courts to depart from their primary function of enforcing contracts and exceptionally refuse to enforce them. Public policy in this sense is disabling.”[38]

The restricted scope of public policy has two paramount reasons: First, traditional reluctance of judges to disclose or discuss openly the ideological assumptions underlying justice administration. Second, acceptance of separation of powers and consequent reluctance to compete with the legislature in applying legal policy.[39]

Lord Atkins said public policy “could only be invoked in clear cases in which the harm to the public is substantially incontestable.”[40] Lord Wright said: “Certain rules of public policy have to be molded to suit new conditions of a changing world. That is true of the principles of common law generally.”[41]

Oliver Wendell Holmes said in The Common Law: “The actual life of the law has not been logic, it has been experience.”[42] For law to fulfill a useful and adequate function in society, it must be based on the felt social, economic, moral, and political needs of that particular society at the relevant time.

The Supreme Court of Nigeria and Precedent

In Johnson v. Lawanson (1971), the Supreme Court held it could overrule its own previous decisions or those of the Privy Council to avoid perpetrating error that would result in injustice.[43] The Supreme Court normally treats its previous decisions and Privy Council decisions with great respect but can depart from a previous decision if it’s wrong and following it would lead to injustice.

In Eperokun v. UNILAG (1986), Oputa JSC said: “The question of this court reconsidering its previous decision is not new, it is as old as the Old West African Court of Appeal.”[44]

However, counsel asking the court to overrule itself has an onerous burden. In Williams v. Daily Times (1990), Obaseki JSC said: “To succeed, a strong case of error and injustice is required. It must be established that those previous decisions were erroneous and vehicles of injustice.”[45]

Balancing Stability and Progress

The challenge is balancing legal stability and certainty against law’s development as an instrument of social evolution. Overruling a precedent has retrospective operation, which differs fundamentally from repealing a statute.[46] When a decision stood unreversed for years, it may have been cited in numerous cases, valuable properties dealt with relying on it, and important contracts made on its strength. Justice may therefore require that the decision, though founded in error, shall stand inviolate nonetheless.

The history of law reform shows it’s often only with the change of law itself that popular opinion is gradually remolded to a more enlightened viewpoint. The abolition of capital punishment in England illustrates this point.[47]

The history of common law has been a constant give and take between consolidation and progress, between legal technicians and creative jurists.[48]

References

[1] University of Ibadan, Department of Jurisprudence & International Law, “Case Law/Precedent,” Jurisprudence & Legal Theory II Lecture Material (2024), p. 1.

[2] Ibid.

[3] Ibid.

[4] Ibid., p. 2.

[5] Blackstone, Commentaries, quoted in lecture material, p. 2.

[6] Lecture material, p. 2.

[7] Ibid., p. 2-3.

[8] Ibid., p. 3.

[9] Ibid.

[10] Practice Statement [1966] 1 WLR 1234; [1966] 3 ALL ER 77.

[11] Lecture material, p. 3.

[12] Ibid., p. 4.

[13] Ibid.

[14] Ross Smith v. Ross Smith [1963] AC 280 at 292 per Lord Reid; at 307 per Lord Cohen.

[15] Lecture material, p. 4.

[16] Thomas Hobbes, Leviathan, quoted in lecture material, p. 4.

[17] Lord Mansfield in Jones v. Randall (1774) 98 ER 954 at 955.

[18] Rylands v. Fletcher (1868) L.R. 3 H.L 330 (H.L); Fletcher v. Rylands (1866) L.R. 1 Exch. 265.

[19] Wigmore, quoted in lecture material, p. 5.

[20] Mercy Dock Trustees v. Gibbs (1866) LR 1 HL 93.

[21] Fawehinmi v. Akilu [1987] 4 N.W.L.R. 797; Adesanya v. President of the Federal Republic of Nigeria (1981) 2 NCLR 358.

[22] Ariori v. Elemo [1983] 1 S.C 17, per Eso JSC.

[23] Parsley v. Freeman (1789) 3 T.R. 51.

[24] Candler v. Crane, Christmas & Co. [1951] 2 KB 164; Donoghue v. Stevenson (1932).

[25] Denning LJ in Candler v. Crane, Christmas & Co. [1951] 2 KB 164.

[26] Asquith LJ in Candler v. Crane, Christmas & Co. [1951] 2 KB 164.

[27] Scarman LJ in Farrell v. Alexander [1976] 1 QB 345 at 371.

[28] Denning LJ in Farrell v. Alexander [1976] 1 QB 345.

[29] Bendall v. McWhirter (1952); Westminster Bank v. Lee [1956] Ch. 7.

[30] Lecture material, p. 7.

[31] Fibrosa Case (1943) AC 32; Chandler v. Webster (1904) 1 KB 493.

[32] Lord Simons LC at p. 44 in Fibrosa Case.

[33] Ibid., at p. 55.

[34] Lord Atkin in United Australia Ltd v. Barclays Bank Ltd [1941] AC 1 at 29.

[35] Denning LJ in Parker v. Parker [1959] P. 15 at 22.

[36] Megarry VC in Malone v. Metropolitan Police Commissioner [1979] 2 WLR 700 at 725.

[37] Lecture material, p. 8.

[38] Lord Wright in Fender v. Mildmay [1938] AC at 38.

[39] Lecture material, p. 8.

[40] Lord Atkins in Fender v. Mildmay [1938] AC.

[41] Lord Wright in Fender v. Mildmay [1938] AC.

[42] Oliver Wendell Holmes, The Common Law, quoted in lecture material, p. 9.

[43] Johnson v. Lawanson [1971] 1 ALL NLR 56.

[44] Eperokun v. UNILAG [1986] 4 NWLR 162 at 193, per Oputa JSC.

[45] Williams v. Daily Times [1990] 1 NWLR 1, per Obaseki JSC at p. 37.

[46] Lecture material, p. 4.

[47] Ibid., p. 7.

[48] Ibid., p. 9.