the common lawyers saw it, provided a unified system of values, not a random
collection of rules.
178
Therefore when faced with a new situation a court could
find the relevant value by looking at a rule which operated in similar
circumstances to the circumstances now before it. When the court found this
rule, it dug behind the rule to extract the underlying value or moral reasoning
(as distinct from the bare text of the legal rule) and used this, perhaps with
appropriate modification for the different circumstances, to formulate a rule
for the case before it. In this way, when a case arose that did not exactly fit a
rule, or for which there was no rule provided, there could be a mechanism for
constructing a rule.
This invoked the maxim “in consimili casu, consimile debet esse remedium”
meaning that similar remedies should apply in similar cases.
179
In other words,
the “interests recognised by the existing body of principles are similar to, but
not identical with, the interests now before the court”.
180
Consequently the
court extended the established rule to the new but similar case. As Bracton
expressed it, the court proceeded from similar facts to similar rules, that is
similibus ad similia.
181
This process was possible because cases were not mere “precedent” but
enshrined a “[moral] principle”.
182
In this sense, as natural law doctrine
proclaimed, common law principles were “simply awaiting discovery”.
183
By
this means, common law rules “judicially evolved” in such a way that they
“contain[ed] within themselves their fair logical result”
184
so that legal rules had
their own inner logic.
185
This gave common law rules an “inherent capacity for
extension by logical processes”
186
and analogy was the required form of logic.
All this created an “evolutionary process” that brought common law principles
into existence.
187
Cases built up a rule bit by bit.
188
Values on which rules were
___________________
178
Of course, if this assumption is true, the real nature of the reasoning
process is deduction.
179
Another maxim of similar ilk is de similibus idem est judicium
meaning that
like cases should be treated alike in law.
180
McHugh (1999) p 41
181
Bracton on the Laws and Customs of England (Thorne edition) Vol II, 21
182
Allen (1964) p 307
183
Mason (2003) in Sheard (2003) p 1
184
AV Dicey Law and Opinion in England p 364, cited by Kitto (1992) p 794. See
also X v Minister for Immigration (1999) 164 ALR 583 and Rubin (1996).
185
Oceanic Sunline Shipping v Fay (1988) 165 CLR 197 at 252 per Deane J. As His
Honour pointed out at p 252 this explains why “common law is used as a source
of argument”.
186
Kitto (1992) p 794
187
Kitto (1992) p 794
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