Chapter 7
Common Law Rules
Introduction
Elements
Consequences
Introduction
There has been much debate as to the nature of the process of reasoning by
which common law
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is made.
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Under our analysis, however, the only
rational way for a court to proceed in this area is by reference to policy.
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On this basis, Step 1 in the model for forming law requires us to identify the
options before a court that is contemplating making the common law rule.
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A
court has options because it can make any of a number of versions of a rule.
These options consist of the elements and consequences of the possible rule,
as well as the effect that each possible rule will have if made. This chapter
discusses the first part of this option with regard to making common law. It
considers possible rules
that can be made. A later chapter discusses the
second part of the options, the effects that common law (and statutory) rules
will cause.
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The following table, sets out the options before a court, these options being
designated as Rules 0-n:
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On the general nature of common law see Beaten (1997), Atiyah (1985),
Burrows (1980), Burrows (1976B), Calabresi (1982), Holmes (1881), Lucke (1982),
Lee (1988), Lehman (1984), Jaconelli (1992). On the relationship between common
law and statute law see Atiyah (1985), Burrows (1980), Burrows (1976B), Finn
(1992), Kelly (1986).
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A classic is Cardozo (1921). See also McHugh (1999), Simpson (1986),
Twining (1986). On one view common law furnishes solomonic justice –
see
Jaconelli (1992).
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Christopher Enright Legal Reasoning
Chapter 3 Analysing Legal Rules. For
discussion of the use of policy in common law see Symmons (1977), Bell (1983),
Richardson (1985).
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On making common law see Murphy (1991), McHugh (1985-88), McHugh
(1999), McHugh (1988A), McHugh (1988B), McAdam and Pyke (1997), Mason
(1996), Mason (2003), Murphy and Rawlings (1981), Kirby (1997A).
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Chapter 11 Effects. Chapter 11 discusses effects caused by statutes,
common law rules or the meaning of an ambiguous provision that a court has to
interpret.
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