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stating that “the Court of Appeal would be free, having regard to requirements of
certainty in law, to depart from a covering decision of its own” (Denning [1966] cited
Aldridge, 1984, p. 188). Since then, the House of Lords and the Court of Appeal are no
longer bound by their own rules of precedent and may depart from previous decisions
“when it is considered right to do so”.
These observations indicate some of the ambiguities and inconsistencies surrounding
precedent. However, what emerges from this brief examination is that legal analogy, as
with all processes of reasoning, is necessarily dependent on values. Firstly, the judge is
required to decide whether to be bound by the laws of precedent, or whether they are
simply rules of practice. Secondly, they must evaluate the facts and details of one case
and decide whether it is applicable to the case at hand. Thirdly, the judge must evaluate
to what extent the rules or principles in the previous case are binding. And fourthly, if
members of the House of Lords, they must evaluate whether it is ‘right’ to follow
previous precedent. As Aldridge suggests, rules of precedent owe their binding nature
to judges’ attitudes to “their own dealings and those of their brethren” (1984, p. 200).
The judge
Crucial to value-free legal method is not only the employment of rational and scientific
method, but the perception of the neutrality of the judge. The common view that law is
a system of rules goes hand in hand with the role of judges to neutrally and objectively
apply the law. It is precisely because judges are not robots or machines that the
necessary interpretation and application in anything but the most straight forward case
is possible. Despite the development of mechanisms which aim to objectify judicial
interpretation, there remains considerable judicial discretion particularly where the law
is unclear and open textured.
Lord Devlin describes his perception of this component of his role as a Lord of Appeal
in the highest court of the English legal system. Lord Devlin paints a picture of the
judge as the epitome of an English gentleman; a “spokesman for the ordinary citizen”
(p. 22) whose role is an extension of a jury and his judgement an “elaboration of a
jury’s verdict” (p. 27). In relation to the ordinary man, Lord Devlin talks of judges
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