In this reappraisal the later court may decided after proper consideration to let
the rule stand as it was initially formulated. Alternatively, it may decide to
change the rule. To change the rule the court can narrow or extend the scope
of the rule by taking any of the following actions:
(1)
It can delete an element from the rule or it can add an element to the
rule. To do this the later court revisits the decision making involved when the
rule was first formulated. Here, the court had to distinguish the material facts
of the case from those that are not material. The point to this is that each
element of the rule is created by generalising some material fact. Therefore, to
add an element the later court finds that some additional fact (whether present
in the case
or not) is a material fact. It then generalises this fact to create the
new element. By similar reasoning, to delete an element the later court finds
that some fact that the original court said was material is not in truth material.
(2)
It can narrow or enlarge the scope of an existing element. As already
stated, each element is formulated by generalising a material fact to some
degree. Therefore, to enlarge the scope of an element the court generalised the
material fact to a create degree than was done when the rule was previously
formulated. By similar reasoning, to narrow the scope of an element the court
generalises it to a lesser degree than it was when the rule was previously
formulated.
In short, to narrow or extend the scope or a rule a later court
revisits the
decisions made by an earlier court when it formulated the ratio. The original
court identified the material facts and generalised each of them to some degree
to form the elements of the new rule. Since there is no strict logic to guide a
court when it makes these decisions, it is at least tacitly accepted that a later
court can reconsider these decisions in the light of facts that differ from the
original facts.
This scope for revision of a rule is like jiggling the tea bag to strengthen the
brew. It makes common law flexible and adaptable.
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Typically change that is
made this way is done in small increments. This allows experience with the rule
and the concomitant observation of how well or badly the rule works to guide
the court. It is the legal version of evolutionary adaptation.
Reappraising a Rule
From time to time a court will reappraise a common law rule on the basis that
it is no longer suitable to current circumstances. In consequence the court will
amend or abolish the rule. In one case the High Court of Australia abolished
the common law rule that said that one spouse in a marriage could not be
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See the discussion of ambiguity of competing versions of a rule in Chapter
10 Classifying Meanings.
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