Making a Rule
To understand how two or more versions can arise by a making a rule, it is
necessary to understand how a common law rule is made.
286
The starting point
is the fact that common law is a generalisation of the material facts of the case
in which it was made. To make common law a court makes two choices. It
decides which facts in the case are material facts and which are not. Then it
takes each material fact and generalises it to some chosen degree to make an
element of the rule. Of necessity, these choices -
to decide which facts are
material facts and to decide the degree to which each fact should be
generalised -
figure very prominently in any review and remake of a common
law rule.
287
There is, however, no absolute requirement dictating how these choices are
made. Hence a later court considering the case as a precedent can question
either or both choices. It may argue (i) that different facts should be selected
as material, or (ii) that some or even all of the material facts should be taken to
different levels of generalisation. If it does this it creates a second version of
the rule. Because of this possibility common law is commonly ambiguous and
extremely flexible.
Selection of Material Facts
The first step in making a common law rule is to distinguish the material facts
from the non material facts. To explain the scope for choice in the selection of
material facts it is necessary to understand that each element of a common law
rule is an abstraction or generalisation of one of the facts. These facts from
which the rule is derived and which fit the rule are called the material facts,
while other facts, those not within the rule, are called immaterial facts.
(Alternatively they are called either relevant and irrelevant facts, or essential or
non essential facts.) This choice is available to a court because there is no
precise definition of material facts.
By choosing some facts as material, courts are choosing the facts that will be
generalised to become the rule. The choice is made initially when the rule itself
is first enunciated in a case. In subsequent cases, because the formulation
involves a choice, the later court can dispute the choice of material facts, and
treat different facts as material from those so treated in the earlier case. By
doing this courts can change a rule after it has been first enunciated – since the
material facts are now different the generalisation of the facts that makes up the
rule will also be different. So, this is one way in which more than one version
of a rule arises.
286
Chapter 7 Common Law Rules
287
Stone, Julius (1959)
 |
 |
 |