1. There is earlier discussion of aspects of reporting in Munday JSPTL (1978), p 201; J. Dawson Oracles of the Law (1968) a p 80ff; Lewis, (1932) 48 LQR 230 Google Scholar; Daniel The History of the Law Reports: J. H. Baker An Introduction to Legal History (2nd edn), ch 11; 44 (1985) CLJ 46 at pp 5641.

2. Hart, The Concept of Law pp 155-163 Google Scholar; Finnis, J. Natural Law and Natural Rights, pp 106–110 Google Scholar; Wasserstrom The Judicial Decision, ch 4; Dworkin, R. M. Taking Rights Seriously, pp 113–118 Google ScholarPubMed.

3. Notably the decisions of appellate courts.

4. Discussion of the issues raised by these two difficult words occurs infra, especially at pp 209–210 and 223.

5. The desirability of law being accessible to lawyers and citizens is obvious, although the complexity of much case law militates against it being comprehensible to non-lawyers.

6. [1983] 1 All ER 564. See also Bartholomew (1983) 133 NLJ 781.

7. Lord Diplock in fact concerns himself with the Civil Division only.

8. A committee of the Senate of the Inns of Court is now (April 1985) looking into this matter.

9. Pioneer Shipping v B. T. P. Tioxide [1981] 2 All ER 1030 at p. 1046E–J.

10. The problem is well discussed by Munday op cit, n 1 above. Consider also Raz point at p 217 The Authority of Law, that relatively swift and cheap access to courts is a requirement of the Rule of Law doctrine. The recent adoption by the House of Lords of the practice that counsel should make written submissions in a dossier, which will be consulted by the Lords before the hearing, is likely to reduce the time spent in hearing cases before that court: R v Coldstein [1983] 1 All ER 564.

11. Dawson op cit, n I above, pp 81–86.

12. Paton and Sawer 63 LQR 461, at several points observe that there may be a conflict between (a) a court's concern to decided an issue inter partes and (b) its duty to do so by laying down a clear principle. This conflict arises dramatically when different judges reach the same result for different reasons. This problem is discussed in detail at pp 217–222 below.

13. Dworkin op cit, n 2 above, ch 2 (especially sections 3–6); ch 3, section 5.

14. Among the extensive literature is: Cross Precedent in English Law (3rd edition), especially pp 38–102; Simpson, in Oxford Essays in Jurisprudence (1st Series) (ed Guest), and 21 MLR 155, 22 MLR 453; Montrose 2 UWALR 329 and 504; (1956) SALJ 187; 20 MLR 124, 587; Goodhart 40 YLJ 161; 22 MLR 117; Gottlieb The Logic of Choice, ch 6.

15. The distinction is drawn by Simpson 20 MLR 413–415.

16. On the notion of generality, see Fuller The Morality of Law, pp 46–9; Bentham (ed Hart, Athlone Press ed) Of Laws in General (1970), ch 9.

17. 40 YLJ 161; also printed in Essays in Law and Jurisprudence (Cambridge, 1931), ch 1.

18. Stone demonstrated that it is fallacious to assume that there is an unique or ‘necessary’ way of categorising the facts of a case: (1959) 22 MLR 597 at 608 and Legal System and Lawyers' Reasonings (1964), pp 267–274. Schreiner JA in Pretoria City Council v Levison (1949) (3) SA 405 at 417 (cited by Cross op cit, n 14 above, at p 79) commits this fallacy in part (c) of his test of a ratio.

19. Goodhart (1950) 66 LQR: 374, criticises Jacobs v LCC (1950) 66 TLR 659, on the ground that it contains a faulty analysis of a previous case in this respect. An example of a judge making clear which part of his judgement is obiter is Salmon LJ in Gallic v Lee [1969] 1 All ER 1062 at 1081–1082.

20. Raz, op cit, n 10 above, at pp 183–189 Google Scholar, discusses the nature of ‘distinguishing’, but as he admits at p 207, he had yet to carry out a similarly exact analysis of the converse process of ‘expanding’ a case's ambit.

21. Goodhart's theory is also directed at the problem of a decision given with no reasons or in which the reasons conflict. I regard such decisions as lacking a ratio, at least if there is only one judgment given in the case.

22. See references to Stone in n 18 above.

23. An example of the familiar problem of determining the scope of a rule is the interpretation of Donoghue v Stevenson in Grant v Australian Knitting Mills [1936] AC 85.

24. A rebuttable presumption.

25. [1957] 2QB 1 at 25.

26. In France, all decisions must be ‘motivé(e)s’; see Touffait and Tunc (1974) Rivue Trimestrielle de Droit Civil, pp 487ff, where it is argued that the ‘laconic’ style of French judgments should be abandoned in favour of the English model of full reasoning. For the contrast between English, French and Russian judicial styles, see Rudden (1974) 48 Tulane LR 1010.

27. MacCormick, Legal Reasoning and gal Theory, pp 72–83.Google Scholar

28. Fuller, The Morality of Low pp 63–65 Google Scholar.

29. Cross, op cit, n 14 above, pp 65–66.Google Scholar

30. Fuller, Forms and Limits of Adjudication, 92 (1978) HLR 353.Google Scholar

31. Montrose, UWALR (1953), p 319 (noted Cross op cit, n 14 above, p 76); Llewellyn The Bramble Bush (1930), p 52 (noted Cross p 78).

32. [1866] LR 2 Ex 259.

33. [1912] AC 716; noted and discussed by Cross op cit, n 14 above, pp 4547.

34. This rule has recently been formulated by Nourse J for conflicting decisions of the High Court in Colchester Estates v Carlton Industries [1984] 2 All ER 601, provided the judge in the second case considered carefully the first decision.

35. See Raz description of ‘distinguishing’ as an act of ‘restricted’ law-making op cit, n 10 above, pp 186–188.

36. At p 211.

37. Lord Dunedin in The Mostyn [1928] AC 57 at 73 spoke against the assumption that a case, even if unreasoned or unintelligible, should be treated as establishing a precedent. It might be sensible in fact to require all decisions to be reasoned.

38. Cross op cit, n 14 above, pp 96–99.

39. For Lord Reid's opposition to this style of reference to past cases, see n 56 below. But note Dworkin's apparent approval of this technique, op cit, n 2 above, p111.

40. Rylands v Fletcher (1866) LR I Ex 265 at 279–280 (Blackburn J); (1866) LR 3 HL 330 at 33FL340 (Lord Cairns LC); Indermaur v Davies (1866) LR I CP 274 at 288 (Willes J).

41. See references in n 1 above.

44. Lloyd, Introduction to Jurisprudence (4th edn) at p 822 (especially note 8).Google Scholar

43. Oxford Essays in Jurisprudence (ed Simpson) (Second Series) ch 4 especially at pp 95f. See also J. H. Baker in 44 (1985) CLJ 46 at pp 51–53 and 5M1.

44. Dworkin, Taking Rights Seriously, p 88.Google ScholarPubMed

45. Jacob (1970) 23 CLP 23 discusses the nature and scope of court's ‘inherent jurisdiction’. At pp 27–28 he states that the basis of this complex of powers is: ‘the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.’ If he has correctly described the amplitude of this jurisdiction, we can conclude that Lord Diplock's statement is intra vires. Cross, , op cit, n 14 above, at p 110 Google Scholar, used this jurisdiction to support the 1966 Practice Direction and to refute Stone's argument (69 Col LR 668) that the Direction was a nullity since it was not made in the course of a judicial hearing.

46. See (iii) at pp 210 and 211–213 above.

47. Wasserstrom The Judicial Decision, ch 4.

48. Hart, The Concept of Law pp 155-159 Google Scholar; Sir Isaiah Berlin, ‘Equality’ in Concepts and Categories (OUP 1980) at p 81.

49. Ram v Hughes (1778) TR 350 n.

50. See Fuller, cited at n 30.

51. Nevertheless, it should not be interpreted literally.

52. See n 18 above.

53. Simpson in Oxford Essays in Jurisprudence (1st Series, ed Simpson).

54. Hart, The Concept of Law pp 125–127.Google Scholar

55. The matter is discussed more fully at p 224 above.

56. Cassell & Co Ltd v Broome [1972] AC at 1085.

57. Paton and Sawer, see n 12 above.

58. At pp 210 and 211–213.

59. See MacCormick at pages cited in note 27.

60. Op cit, n 14 above, at pp 91K.

61. Carol Ellis QC informs me that the Law Reports did not report I Congresso del Partido in the Court of Appeal for this reason, but this decision was reported in the All England Reports at [1981] 1 All ER 1092.

62. Taking Rights Seriously, final chapter, (‘Reply to Critics’).

63. See also ch 3, Law, Morality and Society (ed Hacker and Raz).

64. REM (1950) 66 LQR 298.

65. A random example is Nissan v Att-Gen [1970] AC 179, described by DeSmith in Constitutional and Administrative Law (4th edn) at p 154 as ‘a disaster for students of the law’.

66. Raz, Practical Reason and Norms, pp 3H8; but especially 73–76.

67. Dworkin, , op cit, n 2 above, pp 111–118.Google Scholar

68. For the analogy with a jurisprudence constante, see Nicholas, J. K. B. M. French Law of Contract, pp 12–18 Google Scholar; Kahn–Freund, , Lévy, and Rudden, A Source-book on French Law (2nd edn), pp 116–153 Google Scholar; Cross op cit, n 14 above, pp 12–17.

69. Raz in The Authority of Law at p 181 offers the reflection that this factor is much ignored in English law.

70. Cross op cit, n 14 above, pp 149–150.

71. See Cross' interesting discussion (op cit, n 14 above, p 182, footnote 2), of Levi's Introduction to Legal Reasoning (Chicago, 1949). Cross concludes by saying that Levi is describing a system of ‘stare decisis’ in its literal sense rather than ‘stare rationibus decidendis’. My theory is based on the latter conception of precedent.

72. See p 205.

73. Lord Lindley suggested (1885) 1 LQR 137 at p 143 the following criteria, these in fact being the ones still used by the Law Reports: ‘The subject reported should include all cases which introduce or appear to introduce a new principle or a new rule; or which materially modify an existing principle or rule; or which settle or tend to settle a question on which the law is doubtful; or which for any other reason are peculiarly instructive.’ These propositions leave a good deal of discretion to the reporters. As Hemming, a reporter, observed in the same year, 1 LQR 287 at p 289, the last phrase is especially wide.

74. Solle v Butcher [1959] 1 KB671; Taylor v Caldwell (1863) 3 B and S 826; Ry lands v Fletcher (1866) LR 1 Ex 265, at 279–280; (1866) LR 3 HL 330, at 33tL340.

75. McPhail v Doulton [1971] AC 424, overruling the ‘complete list test’ stated in IRC v Broadway Cottages [1955] Ch 20.

76. Formby v Barker [1903] 2 Ch 539 and LCC v Allen [1914] 3 KB 642 at 659, 660, narrowing Talk v Moxhoy (1848) 2 Ph 774.

77. Esso v Mardon [1976] QB 801, extending the scope of Hedley Byrne v Heller [1964] AC 465 to cover pre-contractual misrepresentations.

78. Combe v Combe [1951] 2 KB 215, demonstrating that promissory estoppel is not a means of creating contractual obligations; Howard Marine v Ogden [1978] QB 574, illustrating the relationship of section 2(1) of the Misrepresentation Act 1967 to the common law liability for negligent misstatements. It will, of course, be a matter of judgement for the law reporters to identify which areas of law are in need of clarification and, once clarified, give rise to reportable law.

79. Cases which offer ‘interpretation of legislation likely to have more than a narrow application’ are reported by the All England Reports, no doubt only where the relevant provision was previously uncertain.

80. Judicial interpretations of common-form contracts and wills are reported by the All England Reports, but only if the matter is authoritative. The danger of a multiplicity of cases being cited by counsel in order to bolster the construction favourable to a client's cause, was long ago noted by Lord Lindley, 1 (1885) LQR at p 137.

81. Cresswell v Potter (1968) [1978] I WLR 255 (note), which adapts the wide doctrine in Fry v Lane (1888) 40 Ch D 312 to modern social conditions.

82. Lord Denning in Lloyds v Bund [1975] QB 326, where he suggests a general and unifying theory of contractual unfairness based upon an ‘inequality of bargaining position’.

83. Cases falling within categories (v), (vi) and (vii) would probably be reported by the All England Reports, but not by the Law Reports.

84. Olympia Oil and Cake Co Ltd v Produce Brokers Ltd (1915) 112 LT 744 at 750.

85. Re Ralli's Will Trusts [1964] Ch 288, which is in conflict with Re Brook? Settlement Trusts [1939] Ch993. This category should first be contrasted with (ii) in list B below (unconscious innovation where the relevant principle is not mentioned by the court making the decision); secondly, this category should be contrasted with (iii) in list B, an unconscious innovation where the principle, not a rule (see p 228), is mentioned but not discussed.

86. A decision would not appear in the Law Reports if this were the only notable aspect of the case.

87. Daulia v Four Millbank Nominees [1979] Ch 231, in which it was stated obiter that an unilateral contract is ‘accepted’ by part-performance. The Law Reports do not report all such cases. But the higher the court, the greater the chance that such a case will be included in those reports.

88. Blausten v IRC [1972] Ch 256, Buckley LJ doubting the validity of an ‘intermediate power’; Woodar v Wimpey [1980] 1 WLR 227, the House of Lords doubting the soundness of Lord Denning's reasoning in Jackson v Horizon Holiday [1975] 1 WLR 1468.

89. Thake v Maurice [1984] 2 All ER 513, a contract case in which arguments of policy contained in Udale v Bloomsbury AHA [1983] 2 All ER 522, a tort case, were not followed.

90. For an inconclusive discussion of counsel's suggestion that there is a contrast between ‘rules of practice’ and ‘substantive rules’, see the Court of Appeal in the Techno-Impex case [1981] QB 648.

91. The phrase is DeSmith's: see Judicial Review of Administrative Action (4th edn), p 329. 95. Raz, The Authority of Law, pp 90–97 Google Scholar, 172–175, 181 ff.; MacCormick, op cit, n 27, above, ch 2.

93. Raz, op cit, n 10 above, pp 182, 207–209; MacCormick, op cit, n 27 above, pp 65–72.

94. See the comment in n 37 above.

95. The solution to this problem has been suggested above.

96. Op cit, n 10 above, p 207.

97. See pp 223–224.

98. Nicholas, French Law of Contract, pp 12–18.Google Scholar

99. Lord Atkin, , Harris v Associated Portland Cement Manufacturers [1938] 4 All ER 831 at 835Google Scholar.

100. For example, Industrial Tribunals were given jurisdiction to hear unfair dismissal claims with this in mind: Royal Commission on Trade Unions and Employers Associations (Donovan Report) (Crnnd 3623) (1968), paras 568, 572–573, 578, 584–585.

101. The notion of Industrial Tribunals as ‘industrial juries’, (both ‘wing-men’ are non-lawyers selected for their experience in industrial relations) was introduced by Donaldson J (see Bessenden v Corness [1977] ICR 821 (note)).

102. This is one of the arguments against the short lived National Industrial Relations Court; for example see Beddard in (1984) Times 14 December.

103. [1973] Fam 72; Cretney Principles of Family Law (4th edn), pp 827–833 for the history of the rule's introduction and subsequent treatment.

104. Paul v Paul (1882) 20 Ch D 742 and Re Bowden [1936] Ch 71, applying Milroy v Lord (1862) 4DeG & F 164.

105. Examples of cases which have been held to be binding are: Krell v Henry [1903] 2 KB 740 and Herne Bay Steamship Co v Hutton [1903] 2 KB 683 (frustration of the commercial venture); George Mitchell v Finney Lock Seeds Ltd [1983] 1 All ER 108, illustrating the standard of reasonableness under the Unfair Contract Terms Act 1977. A case in which it was said that the decision and ones similar to it should not be binding is Qualcast (Wolverhampton) v Haynes [1959] AC 743.

106. Dworkin, op cit, n 2 above, p 88.Google Scholar

107. Raz op cit, n 10 above, at pp 214–217, although he does not match my formulation, there seems nothing in his account to suggest that he would not accept that these matters should be considered to form part of the Rule of Law doctrine.

108. Stone, 24 MLR 475, at 47–77.

109. The view of Carol Ellis QC, one of the senior law reporters, is that the task of law reporting is too specialised to be entrusted to non-lawyers.

110. The committee referred to in n 8 is now looking into this matter.

111. MacCormick, op cit, n 27 above, pp 73–86.Google Scholar

112. Fuller Forms and Limits of Adjudication, cited at n 30 above. See also Craig Administrative Law (1st edn), pp 277–280.

113. For the suggestion regarding ‘pragmatic harmony’, see Raz, op cit, n 10 above, p 201.

114. It seems highly unlikely that the courts would wish to have the power to determine which cases should be reported.

115. Craig, op cit, n 112 above, at pp 294–297.