established common law rule, precedent stands quietly behind common law
rules ensuring that they are used and applied without question. Thus, for
example, when a plaintiff sues for trespass to land there is usually no reference
to precedent to establish the tort. Its existence and continuance is taken for
granted. Parties will, however, produce and argue from precedents if a
question arises as to how aspects of the
tort of trespass to land should be
interpreted.
Amending and Interpreting Common Law
Courts will sometimes amend a common law rule. They will also interpret a
common law rule when it is ambiguous. In principle when performing these
tasks a court is bound by the rules of stare decisis. However, the strictures of
precedent are weakened by the amorphous and fluid nature of common law. A
major aspect of this is that common law is riddled with an ambiguity that easily
allows a court to make a legitimate or apparently legitimate claim that is has
some leeway of choice. This ambiguity, which has been discussed earlier,
consists of two or more versions of a rule.
392
In consequence, as Lord Wright
has said: “notwithstanding all the apparatus of authority, the judge has nearly
always some degree of choice”.
393
Faced with two or more versions of a rule, a court has to make a choice. It
may choose any one of the proffered versions. It may also sometimes
plausibly argue that none of the versions is correct and decide on another
version, which it then proceeds to formulate.
Statute Law
Precedent is used as a major source of argument for interpreting statute law.
We can usefully distinguish two cases where precedent is used for interpreting
law. First, there is the situation where a precedent is binding on a court. This
happens when two things occur. The decision is made by a court higher up in
the hierarchy. And the decision is squarely and directly on the issue now
before the court because it involves the same provision and the same
ambiguity. Unlike common law, statute law has a fixed and definitive text.
394
Hence it is generally easy for a precedent to be “spot on” in resolving an issue
of interpretation. Thus, in these cases the precedent will very likely carry the
day. This is how precedent can give interpretation of statute law a degree of
certainty.
Second, there is the case where precedent is not binding. Here precedent
constitutes an argument that the court can accept or reject as it chooses.
392
Chapter 10 Classifying Meanings
393
Lord Wright (1939) p xxv
394
Chapter 7 Common Law Rules
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