Okuneh A.

Patrick
Research Proposal For PhD
The University Of Sheffield

THE VALIDITY OF PRECEDENT AS A SCIENCE WITH THE

INFLUENCE OF THE JUDGE (S)’ ATTITUDE IN DECIDING A CASE.

My days as an undergraduate witnessed my wondering about the complexity of the case

law system. Although I have not done any particular work on this, I have always found of
great concern, the efficacy of precedent and its application to the wheels of the progress
of cases that apparently under the common law has developed an empirical chronology of
cases as handouts for the courts in deciding who gets what. I find inspiring the appeal
made by Park, CJ in Mirehouse v Ronnell (1833) 1 CJ & Fin 527 that precedent should
be adhered to for the sake of developing the law as a science. In this research therefore,
my interest is on the validity of precedent as a science with the influence of the judge(s)’
attitude and to ex-ray the characteristics of precedent that engineer law as a science to be
adhered to rather than it being a mere rule or doctrine of practice that is dependent on the
judges attitude without prejudice to its future development as a judge-made-law.
Judicial precedent has a long history of development. The Earl of Oxfords Case in 1615
marked a historical evolution of the doctrine of judicial precedent where King James l
decided that where Equity and Common Law principles conflict, Equity should prevail.
Since then the judges have developed the principle.
As a judge made law, precedent depends on the recording of cases, the hierarchy of
courts and the attitudes of the judge. And what constitutes law in precedent are the rules
or principles formulated in each case to be acted upon by judges in giving decisions.
While a certain school of thought holds that precedent is a mere doctrine of practice,
another says it is a doctrine of law. Adherence is the crux, which of course is the basis for
developing the law as a science.
The dynamism of precedent has been put to test by the formulation of two theories; the
declaratory theory which states that common law does not change, in any case, the law is
merely stated not added to- the judges are declaring the law but on the basis o past
decisions. The other is the realistic theory which says that all principles must originally
come from somewhere, and the abstraction of old principle is the creation of new law.
But whether judges merely re-state laws or make new ones from abstraction of the old
does not remove the fact that judges make laws. The issue is in its development, the
doctrine did not lay down any formula for extracting rules or principles of law from
previous cases and much is left to the discretion of the judge to deduce his conclusion
from legal and logical arguments made before him.
The reason for a judge’s decision varies especially where there are judicial choices to be
made. Lord Denning in ‘the discipline of law’ ex-rayed the doctrine of precedent in its
totality from the judges’ view; Denning frowned at the application of precedent even in
the face of injustice and would rather overrule an old decision is such a circumstance. But
there is another side to the divide. Lord Simonds’ resounding passage in Midland Silicons
Ltd v. Santtons Ltd {1962} AC 466 ‘…for to me heterodoxy, or as some might say,
hearsay is not the more attractive because it is dignified by name of reform. Nor will I
easily be led by an undiscerning zeal for some abstract kind of justice to ignore our first
duty, which is to administer justice according to law….’
In examining precedent as a science, against the backdrop of observation to hypothesis
and then from hypothesis to implication in order to check the validity of the decision
from the standpoint of compatibility with the modern scientific methods, it is absolutely
difficult to find a place for the judges’ attitude, which of course is not empirical and so
not scientific. This is because it is difficult to determine the choice a particular judge
where there are leeways of choice in the exercise of his discretion. Stone in ‘Precedent
and Law’ distinguished self-acknowledged (express) and non-self acknowledged (tacit)
exercise of discretion by the judges. This refers to whether the judges acknowledge to
themselves that decision depend upon their own choice rather than on the compulsion of
pre-existing precepts of law or stare decisis. Talking about judges disposition, Professor
Robert Stevens says that the relationship between the persona of the Law Lord, his
attitude and predisposition and the development of the law, presuppose some
understanding of how these attitudes and disposition are able to enter and influence the
body of legal authorities.
In a bid to ascertain the reason for a decision, Stone identified two methods; the first is
the holding on ‘the material facts’ of the preceding case and secondly, the rule
propounded by the precedent court as the basis of its decision. But this was not
conclusive because he said that even though the precedents courts’ view of the material
fact is decisive in finding the ratio, there is often in fact no clear specification by the
precedent court of its choice of which facts it regarded as ‘material’. At any rate, we
cannot completely separate the discretion of the judge, which includes his pre-disposition
in determining a ‘material’ fact. And if we like Lord Denning have to decide by what is
just, what premises would we lay to ascertain what is a just argument. For this, stone
criticises the courts for often regarding themselves to treat extra-legal propositions as
premises from which to argue to logical conclusion. He also found as an error an attempt
to assume from existing legal proposition, draw logically sequential propositions for new
situations (i.e. not yet legislated or adjudicated upon), then these sequential propositions
are themselves legal propositions, binding for situations falling within them. He
concludes that this is to assume that all logical implications from existing legal
propositions are also legal proposition.
My opinion is, that the judges’ attitude in making decisions is really the crux, and what
constitutes good reason for taking a particular decision with all its logical permutation is
another especially borrowing Stone’s term where the judge has a ‘leeway of judicial
choice’. This is necessary because the judge(s)’ attitude does not constitute law therefore
its influence makes the law run short of being scientific. My research is ascertaining what
constitutes the judge(s)’ attitude and the possibility of its extrication from the formation
of judicial precedent and its characteristics that engineer law as a science. This research
will open up a further area of research towards developing the law into a science for a
more concrete reliability rather than this theoretically uncertain accessibility by judges,
barristers, solicitors, students and consultants.
Research Questions
In determining the above, I shall try to answer these questions in the course of the
research.
17. What are the characteristics of precedent?
 18. How do these characteristics influence law as a science?
19. What formal criteria do we employ for distinguishing good reason
20. What would be a correct conclusion drawn by sound logical argument from any
existing legal proposition.
21. What constitutes the judges attitude in stare-decisis
22. At what stage could we say the judge(s)’ attitude has influenced the decision in
the face of a set of ratio decidendi.

This work will be based on literature research. Law reports, journals and textbooks will
be used. Interviews and questionnaires would be utilised also and all the hierarchy of the
courts would be considered in three different jurisdictions or legal systems. Africa, the
United Kingdom and America. In Africa, the Nigerian legal system will be used as a case
study, in the United Kingdom, Britain, while in America, the United States. This is
necessary because what is considered ‘pre-disposition’ and the ‘the judges attitude’ differ
from one legal system to another. Data collected in this survey will be will be analysed to
test the validity of the hypothesis formulated.

Bibliography
23. Determining the ratio of a case by Goodhart.
24. Study of cases by E. Wambaugh
25. Precedent in English Law, by Rupert Cross and J.W Harris
26. The use and abuse of Precedent, by Anthony Mason
27. History of Scots and English Land Law, by C.F Kolbert and NAM Mackay
28. Precedent in English Law, by Dias
29. The Development of American Land law and its deviation from English Law by
Roscoe Pond
30. English Law 4th Edition, by Smith and Kenman
31. Law Legislation and Liberty, by F.A Hayek
32. The discipline of law, by Lord Denning
33. How to do Things with Rules, by William Twining and David Miers
34. Interpreting Precedent A Comparative Study 1997, by N. MacCormick and
Summers
35. Comparative Law Cases and Materials, by R. Schlensinger
36. The Common Law Tradition, by Karl Ilewellyn
37. Research method in Education, 5th Edition, by Louis Cohen, Lawrence Manion
and Keith Morrison
38. Success in Law, by Richard Bruce.
39. Judicial Precedent in Scots law, by T.B Smith