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in law, to depart from a covering decision of its own when it consideredit rightso to do. The attemptswhichLordDenningmade priorto Davis v. Johnsonare describedelsewhere9and need not be

rehearsedhere.

In B. v. B.,'1 one divisionof the Courtof Appeal (Megaw,Waller and Bridge L.JJ.) decided that the Domestic Violence and Matri-

monial ProceedingsAct 1976, s.l(1) was proceduralonly and did not affect substantivepropertyrights.The decisionwas followedin Cantliffv. Jenkins" by another divisionof the Court (Stamp, Orr and OrmrodL.JJ.). In Davis v. Johnson, a five-memberCourt of Appeal (LordDenningM.R., Sir GeorgeBakerP., Goff, Shawand Cumming-BruceL.JJ.) was convened to hear the argumentof a cohabitee that section 1(1) gave her rights to occupy propertyin

which she had been living, irrespectiveof the proprietaryrightsof the respondentin the premises. The Courtof Appeal, by three to two, allowed her appeal against the rescissionby a county court judge, on the basisof B. v. B., of thatpartof an injunctiongranted by a deputycircuitjudge, excludingthe manfromthe home of which he andthe womanwithwhomhe had been livingwere joint tenants. Lord Denning M.R., Sir George Baker P., and Shaw and Goff L.JJ., all held that if the matter had been res integra,the appeal should have been allowed. Theirviews as to the precedentposition differed. Lord Denning M.R. took the view that this aspectof the rules of precedent in the Court of Appeal should be reformulated

thus12:

"Wheneverit appearsto this courtthat a previousdecisionwas wrong, we should be at libertyto departfrom it if we think it right to do so. Normally-in nearly every case of course-we would adhereto it. But in an exceptionalcase we are at liberty to departfrom it."

Alternativelyhe would have been preparedto treat the case as a

further innominate exception to the rule in Young.3

Sir George Baker P.14 and Shaw L.J.15were both prepared, without dispensing entirely with stare decisis, to create further

8PracticeStatement(JudicialPrecedent)[1966]3 All E.R. 77.

9Denning, The Discipline of Law, (1979), pp.297 et seq.

'0 1978 Fam. 26.

that the decision is clearly wrong and cannot stand in the face of the will and intention of Parliamentexpressed in simple language in a recent statute passed-to remedy a serious mischiefor abuse, and furtheradherence to the previous decision must lead to injusticein

the particularcase and unduly restrict proper development of the law with injustice to others."

p.308E that the principle of stare decisis should be relaxed where its applicationwould have the effect of deprivingactual and potential victims of violence of a vital protection which an Act of Parliament was plainly designed to afford to them, especially where, as in the context of domestic violence, that deprivationmust inevitably give rise to an irremediable detriment to such victims and create in regard to them an

injustice irreversibleby a later decision of the House of Lords."

exceptions to Young. The exceptions were both tailored to the instant case, and are, with respect, the sort of piecemeal judicial reform which shows the common law tradition at its worst. It is

difficult to imagine cases other than Davis v. Johnson to which the exceptions might apply, and it is also difficult to believe that they may not have been prepared to create further exceptions were suitable demanding cases to have arisen. It is not clear that any difference in effect will accrue from adoption of the different approaches of Lord Denning M.R., Sir George Baker P. and Shaw L.J. Lord Denning's approach has at least the benefit of stating a general rule, rather than showing a readiness to created yet more exceptions to Young, and is thus clearer and more concise.

Goff L.J. held himself bound by Young to follow B. v. B.16 Cumming-Bruce L.J. held that B. v. B. was correctly decided. It thus did not fall to him to consider the precedent point, but he nonetheless delivered himself of various remarks to the effect that

he considered the Court of Appeal to be bound by Young."7

The House of Lords did not hear any argument upon the question whether the Court of Appeal bound itself by its own decisions,18but Lord Diplock dealt with the issue by reviewing the decisions in which statements had been made as to the doctrine of precedent in the Court of Appeal,19 dismissed the possibility of further exceptions, such as those envisaged by Sir George Baker P. and Shaw L.J., being made to the doctrine of stare decisis, and concluded20:

"In my opinion, this House should take this occasion to re-

affirm expressly, unequivocally and unanimously that the rule in the Bristol Aeroplane case as to stare decisis is still binding on the Court of Appeal."

Lord Diplock did not express an opinion upon the question whether and to what extent that declaration was binding upon the Court of Appeal: it is, however, a matter to which Lord Salmon adverted. His Lordship said:

"In the nature of things, however, the point could never come before your Lordships' House for decision or form part of its ratio decidendi. . . I sympathise with the views expressed on this topic by Lord Denning M.R., but until such time, if ever, as all his colleagues in the Court of Appeal agree with those views, stare decisis must still hold the field."

The reaffirmation by the House of Lords of the doctrine in Young, without mention of the exceptions which have been developed since

16 At p.299A.

7 At pp.309H-312A.

18 At p.320C. This fact alone suggests that what was said in the House of Lords, being, in effect, a decision without argument,could not bind the Courtof Appeal in the same way that decisions after argument on matters of substantive law do. See Cross, Precedentin

English Law (1977), pp.148-150.

19At pp.323H-328C.

20 At pp.328C and 328E.

that case,21may be regarded as being rather disingenuous. However, what is more important than such quibbles is to try to make sense of the current position, and in doing so it is necessary to look at the nature of rules of precedent.

II

There is a substantial body of support22for the proposition that rules of precedent are "merely" rules of practice, and not rules of law. It is to be argued that in so far as the distinction is meaningful, rules of precedent should be regarded as rules of customary law, and in doing so it will be necessary to look at some of the flaws in the reasoning of those who have argued otherwise. It is clearly not open to argue that rules of precedent are not capable of being rules of law. As Rickett23 points out, there is no reason why

precedent (for instance the Practice Direction and the rules laid

down in Young) might not, suitably redrafted, form the subject matter of a statute, and if they did, it would become abundantly clear that the rules were law. Failing the intervention of such a statute, however, it has been argued that there are various unanswerable logical difficulties involved in treating rules of precedent as law. These arguments take various forms and will be stated in turn.

(i) A statement that a court is bound by its own precedent is only itself binding if there already exists a rule to the effect that such decisions are binding.24Thus, the declarations in the London Tram- ways case25and in Young v. Bristol Aeroplane Co. are only effective declarations that the House of Lords and the Court of Appeal respectively are bound if they are bound already: the declarations are circular, on the one hand, or false, on the other.

(ii) A statement that a court is not bound by its own precedents it only itself binding if untrue.26 Thus both the 1966 Practice Direction, had it been given in a curial capacity, and the statement by Lord Denning27in Davis v. Johnson of the rule which his Lordship would like to obtain in the Court of Appeal are examples of the "Cretan liar" paradox.28

(iii) If the rules of precedent are capable of being altered by a direction as to practice, without the court in question being seised

2 See per Lord Denning M.R. at pp.282A-283B. and Cross, Precedentin English Law pp.144-145.

22Lloyd, Introductionto Jurisprudence,(4th ed.), pp.826-828; Rickett, op. cit. p.143; Carty, op. cit. p.74; Lord Denning [19791A.C. at p.281C.

23Op. cit. p. 145. It is difficultto see why this possibilitywas not acknowledgedby Evans, "The Status of Rules of Precedent"[1982] C.L.J. 162, esp. at p.173.

24Glanville Williamsin Salmond on Jurisprudence,(llth ed., 1957), pp.187-188; Hicks,

"The Liar Paradox in Legal Reasoning" [1971] C.L.J. 275, 290; Goldstein "Four Alleged Paradoxesin Legal Reasoning"[1979] C.L.J. 373.

25London Tramwaysv. London CountyCouncil[18981A.C. 735.

26Stone, "Logicand Law. The Precedenceof Precedents"(1967) 51 Minn.L.R. 655.

27[1979] A.C. at p.282A.

28Above, note 24

of a lis inter partes or even sitting in a curial capacity, they cannot be rules of law.29

There is a further argument which proceeds upon the same premises as (i), (ii) and )iii) above,30 but in fact argues that the Court of Appeal is in a position to free itself from Young. The argument is as follows. Either Young is binding on the Court of Appeal or it is not. If it is not, then clearly stare decisis will no longer present a problem. If Young does bind, then the Court of Appeal is entitled to choose between inconsistent decisions of its

own and of courts of co-ordinate jurisdiction. The decisions in Young and Wynne-Finch v. Chaytor (and possibly Davis v. Johnson, if Lord Denning's declaration is ratio decidendi) are inconsistent. Hence it is open to any subsequent Court of Appeal to prefer the decision in Wynne-Finch v. Chaytor (or Davis v. Johnson) to that in Young.

It is clear that if these arguments are correct there is something radically untoward in our understanding of rules of precedent since it leads inexorably to a series of paradoxes. The solution which has been adopted by most of the commentators3' has been to say that if treating rules of precedent like ordinary rules of substantive law leads to absurdity, they cannot be rules of law at all. Thus Rickett,32 writing within the positivist tradition, takes a view which he attributed to Hart's The Concept of Law. Rickett writes:

"To say that rules [of precedent] are 'valid' as part of the rules of recognition can only mean that they exist as particular forms of social practice . . . They are, therefore, at most,33 valid statements of practice, component parts of an ultimate factual

rule of recognition."

The view that the rule of recognition is non-legal does not, however, appear from Hart's book. What Hart actually said, in reply to the question, "Is the rule of recognition law?" was this34:

"The case for calling the rule of recognition 'law' is that the rule

providing criteria for the identification of other rules of the system may well be thought a defining feature of a legal system, and so itself worth calling 'law'; the case for calling it 'fact' is

that to assert that such a rule exists is indeed to make an

external statement of an actual fact concerning the manner in which the rules of an 'efficacious' system are identified. Both

these aspects claim attention but we cannot do justice to them both by choosing one of the labels 'law' or 'fact.' Instead, we need to remember that the ultimate rule of recognition may be

from two points of view: one is that expressed in the external statement of fact that the rule exists in the actual practice of the

29Per Lord Denning M.R. [1979] A.C. at p.281D; Rickett, op. cit. p.146.

30An idea of M. D. A. Freeman.

31e.g. Lloyd, Introductionto Jurisprudence,pp.826-828.

32Op. cit. p.144.

33Emphasisadded. Rickett must here be suggestingthat the fact that rules are rooted in

practiceprevents them from being "more,"i.e. "law."It is not clear why this should be the case.

34H. L. A.

system; the other is expressed in the internal statements of validity made by those who use it in identifying the law."

It is respectfully suggested that, if Rickett is reading The Concept of Law as suggesting that the rule of recognition, as descriptive of a social practice, cannot be "law," this is not an interpretation which the book will properly bear. But even if a positivist is driven to concede35 that rules of precedent, being part of the rule of recogni- tion, cannot be law, this does not in any way argue that rules of precedent are not, or should not be regarded as, rules of law: merely it shows that, on the hypothesis that a certain version of positivism is correct, various consequences follow. Rather than see consistency with a particular version of positivism as a test to determine whether a particular theory about precedent is correct, we should ask whether that version of legal positivism is consistent with what we perceive

to be an appropriate explanation of precedent. After all, legal positivism is only a theory about legal systems, and theories which do not regard and synthesise our perceptions are not good theories. Thus it is suggested that, contrary to Rickett's view, legal positivism has nothing to say on the question whether rules of precedent are law or not; rather, proper perceptions of the rules may have something to say about the worth and vitality of positivism as an explanation of legal systems. What then might serve as an explanation of the rules of precedent which will avoid the logical absurdities mentioned above? Are there any other reasons which might bear on the question whether the rules are called "law" or "practice"?

III

it has never been clearly explained by those who argue that rules of precedent are rules of practice, what exactly they mean. Rickett36 set himself the question and then proceeded via an exposition of the views which he attributed to Mart,37to talk of a "generally shared internal attitude of acceptance" of the rule,38 and an expression of concurrence with the view of Lord Denning that the ability of the House of Lords to change the rules of precedent by a declaration such as the Practice Direction demonstrates that the rules are of

practice and now law. Carty39quotes without demur the remarks of Lord Denning M.R. noted above40as to the Practice Direction, and seems to take the view herself that4' "as stare decisis is not a rule of

statute nor of common law, it is simply a creature born of judicial comity."

35e.g. Dworkin, TakingRightsSeriously(1977), Chaps. 2 and 3. 36Op. cit. p.143.

37Supra, note 34.

38 p.144.

39Op. cit. p.8.

40Supra, note 29.

41Op. cit. p.74. Emphasisadded.

Evans, who argues that rules of precedent are rules of law,

distinguishes42(in effect) between descriptiveand prescriptiverules of practice. He correctlyobserves that rules of precedentare not merely descriptivestatements about how judges behave. He goes on43 to consider the view that the rules are prescriptiverules of

practice:

". .. it is not at all clear what is meant by 'rulesof practice.' Presumablythe analogy drawn is to practice directions on matterssuch as the formof documents,or the mannerof taking

preliminarysteps in a trial. I cannot, for myself, see why these rules should not be called ordinaryrules of law. Perhapsthey are alwayssubjectto some overridingdiscretionin the courtto

dispense with the requirementthey impose, but if that is so I would be inclinedto call them rulessubjectto a discretion."

It is submittedthat there is some truth in the views both of Lord

Denning, Carty and Rickett, on the one hand, and Evans, on the

other. There is an ambiguityin the phrase"ruleof practice."It may mean that the force of the rule derives from its source in the

behaviourand attitudesof the subjectof the rules, or it may draw a distinctionin effect from that of rules of law. The view of Lord

Denning, Carty and Rickett, which takes "ruleof practice"in the former sense, embodies the importantpoint that it is incorrectto talk of propositionsabout precedentbeing ratioor obiterin a given case,44but also the nonsequiturthatit followsthatrulesof precedent are not rulesof law. To say that a rule is one of practicebecauseits obligatory nature rests upon the attitudes and behaviour of its

subjects does not preclude it from being "law," because in the former sense of "rule of practice,""law"and "practice"are not mutuallyexclusivecategories.Evanson the otherhand,realisesthat

it is in the effect of the rule that the law/practicedichotomyis real andimportant,but assimilatesunreasonablymanyrulesto the status of law. The properdistinctionin effect betweena rule of law and of

practiceis, it is submitted,that a rule of practicecannotcompel a decision by a court. Thus in Connellyv. D.P.P.45 the House of

Lords disapproveda practicein respectof the joinderof countson an indictment, but were not able to allow the appeal, because a mere rule of practice could not form the basis of a legal determination.

Employing this distinction,where do rules of precedent stand? Can they compel decisions?Rickettwrites46:

"... The House of Lordsmay decide thatthe Courtof Appeal is bound by its own previous decision. A person might, for

42Op. cit. pp.163-165.

43p.165.

44Cross, "The House of Lords and the Rules of Precedent."in Hacker and Raz (eds.), Law Moralityand Society, pp.143-160.

45[1964] A.C. 1254.

46Op. cit. p.145.

194 THE MODERN LAW REVIEW [Vol. 47

example, be conceded locus standi to apply to the House on this point alone."

It is interestingto findthis statementin an articlearguingthat rules of precedentare not rulesof law. If the statementquotedis correct,

claims, the precedentposition in the Courtof Appeal is capableof formingthe sole groundof an appealto the House of Lords,it must

follow that for the purposeof the Englishlegal systemthe precedent position of the Courtof Appeal is a matterof law: if the precedent position is not a legal issue, leave to appealshouldnot be granted, and even if it is granted, no authoritativedeterminationcould be given by the House.

It is, of course, impossibleto imagineas a matterof practicethe remotestpossibilityof leave beinggrantedto an appellantmerelyto argue the precedentposition of the Courtof Appeal in the House of Lords. There seems to be something ridiculousabout a court decidinga case upon the basis that a precedentnot bindingupon it was bindingupon the court from whichthe appealwas taken. One of the purposesclaimed for the doctrineof precedentis the maintenanceof certaintyin the law and thus the preventionof litigation. For the House to refuse to considera substantiveissue upon which

there were conflictingauthoritiesof the Courtof Appeal would do little to preventfurtherlitigationuponthe issue. It is also interesting to note that the issue whetherthe decisionof one High Courtjudge sittingat firstinstanceis bindingupon anotherhas neverformedthe basis of a determinationby the Court of Appeal, and, it may confidentlybe predicted,never will.

An hypothetical case whose occurrenceis more probable, and whichcould arise for decisionsolely upon the rulesof precedent,is as follows. An appeal may be taken to the Courtof Appeal on the groundsthat the judge at first instance failed to apply a covering House of Lords decision. The judge failed to apply that decision becauseshe appliedan incorrecttest to determinethe ratiodecidendi

of the case,49 unduly narrowed it, and refused to follow a statement whichhe regardedas obiterdictum.Whatwould be the groundsof

sense, law, they can no more compela determinationbeforea court of law than can article 18 of the F.I.D.E:

deals with unsportingconduct)or the "ruleof practice"in Connelly v. D.P.P. It would clearly be invidiouswere the Courtof Appeal unableto allow the appeal:the choicewhichremainsmusttherefore

47 If the statement is false, it will not necessarilyfollow that rules of precedent are not law.

48The considerationthat when the House sits in its judicial capacityit is a court of law is presumablysufficient to establish this proposition. The distinctionemployed here is not the time-honoured(yet still unclear) one between "law"and "fact,"but between legal and

non-legal norms.

49 Cross, Precedentin English Law, pp.38-102.

some artificial argument, such as saying that the judge erred in law as a consequence of mistaking a rule of practice. However it is submitted that if a rule is so inextricably bound up with rules acknowledged to be legal, that rule itself ought to be considered legal.50 If this view is inconsistent with any legal theory to which habitual obedience is paid, that theory is brought into question.

Rules of precedent are to a large extent sui generis, so it may not be fruitful to seek to classify them within an existing typology. However since there are generally conceded to be three sources of English law, statute, common law and custom, and since the existing rules of precedent fall within neither of the first categories, an explanation in terms of customary law suggests itself. In an important article published in 1969,51Fuller drew attention to the phenomenon of customary law, generally regarded as peripheral to the real matter of legal theory. He showed the importance of the study of customary law and suggested a wider and more fruitful explanation than that generally given. The received view52 is that a practice53 may by repetition "harden" into customary law. Thus to establish a custom in an English court it is generally necessary to show its existence since time immemorial.54 Now obviously the rules of precedent cannot be explained as customary law in such limiting terms, both because of the absence of antiquity55 and because the rules have been changed within living memory. Fuller's wider understanding of rules of customary law is as "reciprocal interactional expectancies." This view allows the assimilation of rules of precedent to rules of customary law. The rules depend upon the attitude of judges to the rules (considering themselves and their fellows to be bound or not, as the case may be). There is no reason why the expectations of the judges as to each others' behaviour may not be altered (as they were in 1966), and if the rules are understood as rules of customary law the logical problems detailed above disappear.56The adoption of this thesis has two important consequences. If the rules of precedent in the Court of Appeal inhere in some comity of the court:

(i) Citation. Cases should only be cited to give evidence as to the

rules, not in order to persuade the court that they are bound by them. In the Court of Appeal in Davis v. Johnson no less than 36 cases in which the doctrine of precedent was concerned were referred to in the opinions of their Lordships. Although the argument in the Court of Appeal is not reported, there are cases reported as having been cited in the Court of Appeal which turn on the question of precedent, but which were not referred to in the opinions, so it must

50 An analogous argumentappearsin Evans op. cit. pp.166-167.

51 "HumanInteractionand the Law" (1969) 14 Am.J. Jurisprudence1. 52 e.g. Allen, Law in the Making (3rd ed., 1939), pp.119-125.

53 Here the term is used purely descriptively.

54 i.e. the year 1189. See Simpson v. Wells(1872) L.R. 2 Q.B. 214.

55Since the advent of stare decisis is a phenomenon of the nineteenth century.