Formulating a Rule
In cases a court may formulate a common law rule. This may be a new rule
that the court is making, or it may formulate an already established rule that it is
applying.
There is good reason for a court to formulate a rule that it is applying in a case
because a common law rule is typically scattered over many cases. It will be
first formulated in the case where it is made. Subsequently as new sets of facts
confront the rule, a court may enlarge the rule, narrow the rule or interpret the
rule. However, there is no logic in the temporal order in which aspects of a rule
are created, developed, modified and interpreted by courts, since these tasks
are all performed as part of the process of resolving a dispute.
Yet, despite this fragmented history, common law also resides in formally
stated legal doctrines. Lawyers try to clothe the dishevelled form of common
law in some appearance of order. As they collect the cases dealing with the
rule, they refine, abstract or distil the elements of the rule, and they shape and
structure these elements into some rational form.
In giving common law this second home in elegantly fashioned legal rules
lawyers are not abandoning the roots of common law in judicial decisions.
They are merely putting common law in more amenable form. It is far easier to
apply and interpret a rule that is coordinated in a legal doctrine than it is when
bits and pieces of the rule are spread through a number of cases.
This formal articulation or refining of common law in legal doctrine is most
obvious in legal writing such as textbooks or journal articles. This is the
reason, as John Stuart Mill said, that common law may “be sought in law
books by writers of authority”.
495
As he went on to point out, “private writers
on law” are generally responsible for “definiteness in detail and whatever order
or consistency as a whole, has been attained by any established system,” and
“all the generalisations of legal ideas, and all the explicit statements of the
meaning of principal legal terms”.
496
In practical terms he meant that writers
take the many specific decisions of judges, distil the underlying rule and in this
way blend the cases into an ordered account of the law.
497
495
Donoghue v Stevenson [1932] AC 562, 567 per Lord Buckmaster
496
John Stuart Mill Dissertations, iii 214
497
To illustrate, in The Susquhanna [1925] P 196, 210, Atkin LJ said: “I think that
the law as to damages still awaits a scientific statement which will probably be
made when there is a completely satisfactory textbook on the subject”.
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