"Some will say it is our duty to follow the House of Lords and not to question their decision. We are not to, reason why. Ours is but to do and die."1

With this fanfare, Lord Denning renewed his campaign to revolutionize the English constitutional custom that lower courts are inflexibly bound by prior decisions of the House of Lords.2 Salmon L.J. and Phillimore L.J. joined him in the effort.3

The response of the House of Lords was blunt and uncompromising. The Lord Chancellor, speaking with "a studied moderation"4, declared:

The fact is, and I hope it will never be necessary to say so again, that in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal,

to accept loyally the decision of the higher tiers.5

Lord Reid referred to the conduct of the Court of Appeal as an "aberration".' Lord Diplock declared that the Court of Appeal had no "right to disregard a decision of a higher appellate court".' The only decision which reflects the least sympathy for the position taken by the Court of Appeal is that of Viscount Dilhorne.'

The question which continues to beg an answer is, why must the Court of Appeal follow the most recent decision of the House of Lords on any given subject.

The case followed upon the publication by Cassell & Co. of a book authored by David Irving, entitled The Destruction of PQ17. The book purported to be a true account of one of the greatest naval disasters suffered during the Second World War. The book placed the blame for the disaster on a Captain Broome and made allegations that his conduct had been improper and cowardly. At trial, Captain Broome adduced evidence which vindicated him and which suggested that both the author and the publishers knew that their charges against him were false. The author and the publisher presented no evidence.

The trial judge directed the jury that they could award punitive damages because the defendants had persisted in their wrongful acts believing the prospects of a best-seller outweighed the possibility of material loss as a result of libeling Captain Broome.

The Court of Appeal held that according to the formulation of the law by the House of Lords, in Rookes v. Barnard,9 punitive damages were available in this case, and that the damage award of £ 40,000 was not excessive. This was sufficient to dispose of the appeal. The Court of Appeal went on to say that Rookes v. Barnard had been decided per in curiam by the House of Lords" and that judges should no longer follow it in instructing juries on punitive damages.11 But it is not the purpose of this comment to assess the merits of the Court of Appeal's comments on the circumstances in which juries should be permitted to assess punitive damages in civil cases.12 Here attention will be focused on the constitutional implications of the case.

The doctrine of stare decisis is normally seen as having two branches. The first is that the highest court is bound by its previous decisions and the second is that lower courts must follow the decisions of higher courts. Since the Practice Statement of 19,66," the House of Lords no longer considers

itself bound by its own precedents. Therefore, the

logical support for the second branch stare decisis has been swept aside. Admittedly, the Practice Statement expressly said that it was "not intended to affect the use of precedent elsewhere than in this House"." However, according to the terms of the Practice Statement itself, this restriction is not binding on the House of Lords. To hold the restriction binding on the Court of Appeal would

require a virtuoso exercise in picking yourself up by

the bootstraps."

If the argument in Glanville Williams' edition of Salmond on Jurisprudence" is correct that the Practice

Statement could only bc valid if stare decisis is merely a "practice", then it may be that lower courts are only bound by higher courts' decisions as long as they accept to be bound. And regardless of whether the

pronouncements of the House in this context are rules of "practice" or rules of "law"," the decisive question in positive terms is how will the Court of Appeal respond to the admonition given to it by the House of Lords. If the Court of Appeal is prepared to say that the rule respecting punitive damages in Rookes v. Barnard was given per incuriam, will it balk at saying that the rule respecting stare decisis in Cassell v. Broome was decided per incuriam?

No solution to this "unedifying"18 divergence of opinion will be reached unless the argument is extracted from the emotional context in which it is presently lodged.

Lord Diplock argued that "the judicial system only works if someone is allowed to have the last Word, and if that last word, once spoken, is loyally accepted"." But, with all due respect, this is far too sweeping a

generalization. There are many judicial systems which

apparently function to the general satisfaction of those subject to them without stare decisis.

Stare decisis is not an element of the civil law.

. . . [O]ne of the chief rules of our judiciary requires that a court shall never be bound by the decisions it has previously handed down; it may

always change its mind. All the more is it not bound by the decisions of other courts, even of higher courts. . . 20

Indeed, in France, a lower court is not bound by the directives of the Cour de cassation which quashed its decision except if the Cour de cassation quashes its decision a second time for the same reasons.21

The situation in Quebec is complicated by the interplay of the common law with the civil law, but the principle that a Quebec court does not feel itself bound by a single decision of a higher court on Quebec law seems secure. Bissonette J., of the Québec Court of Queens Bench, Appeal Side, has summarized the situation in Quebec:

. . . quand un point déjà jugé se présente de nouveau, la Cour d'appel peut donc considérer les décisions antérieures et en tenir compte mais moins pour tabler sur le fait même de ces précédents que pour en découvrir les motifs, les apprécier au regard de la loi, des principes et de la logique.22

Nor is stare decisis the rule in international law.23 Nor is it the rule before administrative tribunals even in common law jurisdictions.24

Admittedly, there are special considerations contributing to the exclusion of stare decisis in all of these legal systems.25 Nevertheless, it is also true that the last rigidity of stare decisis which the House of Lords was seeking to salvage in Cassell v. Broome is a comparatively recent addition to the common law. In the days of Coke, interpretations of the law were not perpetuated if they led to inconvenient and unjust results.26 Blackstone said that the laws and customs of the ]and should be enforced unless "the former determination is most evidently contrary to reason; much more if it be clearly contrary to the

divine law'27 . Lord Mansfield's view was that:28

The law would be a strange science if it rested solely upon cases .... Precedent indeed may serve to fix principles, which for certainty's sake are not suffered to bc shaken, whatever might be the weight of the principle, independent of precedent. But precedence, though it be evidence of law, is not law in itself; much less the whole of the law.

But the system of private property demanded more stability.29 Until the birth of the rationalized system of private property, judges theorized that their function was to declare what the law was, and if a prior case had inaccurately declared the law, then this inaccuracy was open to correction in subsequent cases. In response to Bentham's utilitarian attacks on the courts for "making" laws" judges backed themselves into the position of declaring what the law was, once and for all.31 Since by now the matter of whether courts make law is no longer debated but rather assumed," the doctrinal foundation of stare

decisis has been exploded.

But a custom, such as stare decisis, may have value in

contemporary society even if the reasons for its

adoption in the first place have long since disappeared.34 The value of stare decisis in today's society must be assessed in functional terms.

The significance of adherence to precedent may more profitably be stated in terms of the prominence which consistent selection affords one of several otherwise undifferentiated solutions to a problem of coordination.34

In other words,

. . . precedent is merely the source of one important kind of salience: conspicuous uniqueness of an equilibrium because we reached it last time.35

Jerome Frank has argued that the attachment of salience to things passed is primal and characteristic of the child's stage of psycho cal evolution.36 Others have noted that adherence to precedence safeguards vested social interests from re-adjustment in favour of disadvantaged classes.37

Nevertheless, the utility of precedent as a guide to decision-making in the judicial context has been universally recognized. Lobinger has observed a reliance on precedent, to some degree at least, in the societies of China, Babylon, Assyria, Arabia, Rome and Greece.38 Adherence to precedent and custom is also observable in African societies.39 And while, as noted above, civil law systems do not feel bound by prior decisions, respect and influence are accorded to well recognized trends, to the "jurisprudence".40

The ideal role for precedent has perhaps been described by Benjamin Cardozo:

If we figure stability and progress as opposite poles, then at one pole we have the maxim of stare decisis and the method of decision by deductive logic at the other we have the method which subordinates

origins to ends.' . . . Each method has its value, and for each in the changes of litigation there will come the hour for use. A Wise eclecticism uses them both.41

But the rule that a single decision of any one court or judge can, by virtue of a position in a hierarchy of courts, bind all lower courts in subsequent cases contributes little or nothing to the

achievement of either progress or stability. By definition, the rule inhibits the process of change that is a prerequisite of progress. Moreover it yields, at best, a marginal benefit in stability

and, more likely, the benefit is illusory. An examination of House of Lords decisions before and after the "historic" Practice Statement of 1966 led Julius Stone to the conclusion that the Statement may

well be a false symbol. Without the Practice Statement, the House was able to confine cases to their facts and to their ratios, and so avoid following them. Since the "liberation" of 1966 the House has chosen to emphasize how exceptional is the case in which their power to overrule their prior decisions will be invoked.`

The simple fact is that the assumption that a court will follow a particular previous decision of whatever level in the hierarchy does not increase the predictability of a decision in a different

case. Not only is this true of predicting appeal court decisions which are, or at least should be, the "difficult", "arguable" cases. But, to the extent that one accepts Jerome Frank's theories that the

actual reasons for judicial theories are often concealed, then "reliance on precedents is illusory because judges can seldom tell precisely what has been theretofore decided' .

Recent experience in the common law jurisdictions demonstrates not only how little marginal certainty is

provided by rigid stare decisis, but also demonstrates how insecure is the rule itself that lower courts are

inflexibly bound by the decisions of higher courts.

There was a time when there was apparently no doubt that the supreme courts of the "colonies" were bound

on matters of "English" law by decisions of the House of Lords. The Privy Council, the Supreme Court of Canada45 and the High Court of Australia46 all expressed this view. These eminently authoritative statements have nevertheless not stopped the High Court of Australia from refusing to follow the decision of the House of Lords in Rookes v.Barnard,47 which refusal was approved by the Privy Council.48 This case was of course relied upon by the Court of Appeal in launching its assault on the binding effect of House of Lords decisions.49

There is also agitation among higher courts in the United States. The State Supreme Court of Arizona

recently upheld an Arizona statute despite a United States Supreme Court decision that a comparable Florida statute was violative of due process.50 The United States Supreme Court had decided the case by a four to three majority and the Arizona court was of the opinion that a full court would have arrived at a different result. The Arizona court has been severely criticized on the basis that the authorities do not support their approach.51

Regardless of the merits of that criticism, the fact remains, as Cardozo has said, that, where courts are less than full:52

It happens again and again, where a question is a close one, that a case which one week is decided one way might be decided another way the next if it were then heard for the first time.

While Cardozo's solution to the problem was to "stand by the errors of our brethren of the week before",53 one is left wondering whether it would not better serve the interests of justice to hold no single decision binding and await the formulation of a practice by a consensus of judicial opinion.

There are those who will react negatively to such a proposal because it might accelerate the process of change in law and in society.54 But as Mr. Justice Douglas has observed:55

This search for a static security - in the law or elsewhere - is misguided. The fact is that security can only be achieved through constant change, through the wise discarding of old ideas that have outlived their usefulness, and through the adapting of others to current facts.

The controversy continues to rage in the English courts whether courts should be responsive to social

change. In Cassell v. Broome, Viscount Dilhorne observed that:56

As I understand the judicial functions of this House, although they involve applying well established principles to new situations, they do not involve adjusting the common law to what are thought to be the social norms of the time. They do not include bowing to the wind of change. We have to declare what the law is, not what it should be.

On the other hand, as Lord Diplock has commented to his colleagues in Cassell v. Broonie:57

If the common law stood still while mankind moved on, your Lordships might still be awarding bot and were to litigants whose kinsmen thought the feud to be outmoded.

But the true object of liberating courts from the rigid rules of stare decisis is not to promote social change and law reform as such. It is clear that relaxation of stare decisis is a double-edged sword that can be wielded as effectively in the direction of restoration as it can be in the direction of innovation. It was, after all, Robespierre

who cursed the freedom of judges to make political decisions with no accountability to the people's revolutionary assemblies.58

It has been said that the issue of relaxation of the rigid enforcement of stare decisis on lower courts only arises in minds harboring a "complex of unreal assumptions concerning the day-to-day appellate judicial process".59 It is undoubtedly the case that judges of lower courts can avoid the effect of decisions of higher authorities through the manipulation of the rules of stare decisis."

The point of all such proposals is that they tacitly concede the impossibility of obtaining legal conformity, but seek to cover up the more obvious manifestations of this lack. The healthier method

would be not only to recognize the gross evidences of uncertainty but to make evident the actual but now concealed circumstances which make certainty

an impossibility, to the end that by describing accurately the real nature of the judicial process we may learn to better it.61

Justice is the ideal which promises society's members a procedurally fair, substantively rational and

reasonably understandable account of why society regulates their behavior in particular ways. This ideal presupposes that decisions affecting behavior are made openly and honestly. To encourage courts to obscure their actual reasons in the interest of preserving the shibboleth of stare decisîs advances neither progress nor certainty nor justice.
 
 

Daniel Laprès, of the Nova Scotia Bar, Halifax. The author thanks Innis Christie and Brian Flemming for their suggestions.

Footnotes

1 Broonie v. Cassell & Co. Lid. and Another, [197112 W.L.R. 853, at p. 871 (C.A.), affd in part, Cassell & Co. v. Brooinc and Another, [1972] A.C. 1027 (H.L.).

2 In his dissenting opinion in Conway v. Rimmer, (1967) 2 All E.R. 1260, Lord Denning M.R. would have refused to follow Duncan V. Campbell Laird & Co., Lid., [19421 1 All E.R. 507 (H.L.), on the basis of the criticism the case had suffered at the hands of the judiciary of the Coninionwealth. "When we find that the Suprerne Courts of those countries,

after careful deliberation, decline to follow the House of Lords - because they are satisfied that it was wrong - that is excellent reason for the House to think again. It is not beneath its dignity, nor is it beyond its power, to confess itself to have been in error." at p. 1263.

3 Supra, footnote 1, at pp. 873-875 and 884-885.

4 Ibid,, at P. 1053.

5 Ibid., at p. 1054.

6 Ibid., at p. 1084.

7 Ibid., at p. 1131.

8 Ibid., at p. 1007.

9 (1964) A.C. 1129.

10 Supra, footnote 1, at pp. 869-871, 874-875, 878-880, 884-888.

11 Ibid., at p. 873, 879 and 887.

12 On the Liberation of Appellate Judges - How Not to Do It! (1972),35 Mod. L. Rev. 449, at p. 451.

13 [19661 1 W.I,.R. 1234.

14 Ibid.

15 Roy Stone, The Precedence of Precedents, [1968] C.L.J. 35, at p. 37.

16 (11th ed., 1957), pp. 187-188.

17 For a discussion of whether stare decisis is a rule of substantive law or a rule of practice, and the implications of this issue, see Julius Stone, Chains of Precedent (1969), 69 Col. L. Rev 1162, at p. 1165.

18 Supra, footnote 1, at p. 1154.

19 lbid., at P. 1131.

20 Planiol and Ripert, A General Survey of Events, Sources, Persons and Movements in Continental Legal History (1912), Vol. 1, Ch. III, p. 299.

21 John P. Dawson, The Oracles of the Law (l 968), ppª 378-379.

22 Bissonette J., in Bellefleur V. Lavallée, [19571 R - L. 193, at p. 205. But see also Anglin C.J., in Daoust, Lalonde and Cie Liée. V. Ferland, [19321 S.C.R. 342, at p. 345, and contra Anglin, Stare Decisis, quoted by Bissonette 1 ibid., at p. in Also, P. B. Mignault, The Authority of Decided Cases (1925), 3 Can. Bar Rev. 1; W. Friedann, Stare Décisis at COMMOn Law and under the Civil Code of Québec (1953), 31 Can. Bar Rev. 723; Mark R. MacGuigan, Precedent and Policy in the Supreme Court (1967), 45 Can. Bar Rev. 627- Jean-Gabriel Castel, The Civil Law System of the Province of Quebec (l962), Ch. 4.

23 Decisions of the international Court of Justice have no binding force except between the Parties and in respect of that particular case". Article 59 or the Statute of the International Court of Justice.

24 A tribunal which has to exercise discretion must therefore be carefui not to treat itself as bound by its own previous decisions.- H. W. R. Wade, Administrative Law (3rd ed, 1971), p. 66.

25 For instance, in the civil law systems, the rules of law are found in the Civil Code, not the cases. Hence, it is the Code that is decisive not the

Interpretations given to it by courts, see authorities, supra, footnote 22..

26 W. L. Holdsworth (J 934), 50 L.Q. Rev. 180, at p. 185.

27 Commentaries 1, p. 70.

28 Jones v. Randall (1774), Lofft. 384.

29 "I think authorities established are so many laws; and receding from them unsettles property; and uncertainty is the unavoidable consequence", per Lord Hardwicke, Ellis v. Smith (1754), 1 Ves. Jur. 9, at p. 17.

30 "It is the judges . . . that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he docs it and then beat him. This is the way you make laws for your dog, and this is the way the judges make laws for you and me." Works, Vol. 5, p. 235.

31 See for a discussion of this point, D. N. MacCormick, Can Stare Decisis be Abolished, [1966] Jurid. Rev. 197,

32 Stone, op. cil., footnote 12, at p. 477.

33 "For though their reason bc not obvious at first view, yet we owe such a deference to fotmer times as not to suppose that they acted wholly without consideration." Blackstone, op. cil., footnote 27. Contrast: "It is revolting to have no better reason for a rule of law than that il was so laid down in the time of Henry IV. It is still more revolting if the grounds ipon which it was so laid down have long since vanished, and the rule simply persists from blind

imitation of the past." 0. W. Hoinies, Collected Legal Papers (1920), p. 187.

34 Robert L. Birmingham, The Neutrality of Adherence to Precedent, [1971] Duke L.J. 541, at p. 552.

35 D. Lewis, Convention: A Philosophical Study (1969), p. 36, cited in Birmingham, op. cil., ibid., at p. 552.

36 Law and the Modern Mind (1930). pp. 158-159.

37 Op. cit. footnote 34, at p. 552. The reductio ad absurdum of this thought pattern was reached by Lord Ellenborough: "if this rule were to be changed, a lawyer who was well stored with these ideas

would be no better than any other man without them."

Quoted in Jeroine Frank, Courts oit Trial (1949), P. 271.

38 Precedent in Past and Present Legal Systeins (1946), 44 Mich. L Rev. 955, at pp. 956-957.,

39 P. P. Howell, A Manual of Nuer Law (1954), p. 22.

40 Moreover, the importance of precedent in the broadest sense is growing with increased pressure on judges in civil law jurisdictions to elaborateon their reasons for decisions, op. cit., footnote 21, p. 430.

Friedman has noted the relationlip between the relatively expansive decision of Quebec judges and the extent of their reliance on precedent. Op. cit. 22, at P, 741.

41 The Paradoxes of Legal Science (1928), P. 8-

42 op. cit., footnole 16, p. 1201.

43 Op. cit., footnote 36, p. 152.

44 Robins v. National Trust Co., Limited et al., [19271 1 W.W.R. 881, D

45 Bright and Co. v. Kerr, [19391 S.C.R. 63.

46 Piro V. Fosler and Co. Ltd. (1943), 68 C.L.R. 313

47 Australia Consolidated Press LUI. V. Urept (1966), 40

A.L.J.R. 142. Sce also the coniments of Dixon C.J. in

Parker V. The Queen (1962-63), 111 C.L.R. 610, at p. 632.

48 (1967), 41 A.L.J.R. 66.

49 Supra, footnote 1, at pp. 869-871, 874-875, 878-880, 884-888.

50 Roofing Wholesale Co. v. Palmer (1972), 502 P.2d. 1327, at p. 1328, refusing to follow Fuentes v. Shevin

(1972), 407 U.S. 67.

51 (1973), 86 Harv. L. Rev. 1307.

52 The Nature of the Judicial Process (1921), pp. 149-150.

53 Ibid.

54 "All drastic breaks with law that has long been considered estiblished must be regarded by many of the legal professional with misgivings." D. M. Gordon Hedley Byrne v. Heller in the House of Lords (1964-66), 2 U.B.C.L. Rev. 112.

55 (1949), 49 Col. L, Rev. 735.

56 Supra, footriote 1, at p. 1107.

57 Ibid., at p. 1127.

58 Mélanges Maury, 11, pp. 349, 352-353, cited by Dawson, op. cit., footnote 21, pp. 425-426,

59 Julius Stone, op. cit., footnote 12, p. 468.

60 In contrast to the Arizona Supreme Court's treatment of Fuentes, the United States Court of Appeals for the Ninth Circuit has avoided the effect of the Suprerne Court's rule hy concluding that creditors' self-help repossession of secured property

under the Uniform Commercial Code is not "state action" as that expression was understood in the Fuenles case, Adams v, Southern California

First National Bank summarized in U.S. Law Week, Oct. 30th, 1973.

61 Frank, op. cil., footnote 36, pp. 156-157.