Class 3 –
Notes on ‘THE COMMON LAW: CONTEXT AND METHOD’, Sir
Philip Sales, Lord Justice of Appeal:
o ‘In both pure common law decision-making and statutory
interpretation, the courts try to distil specific rules which
reflect a more or less stable accommodation suitable for a
particular area of law between disparate values’.
‘Always the courts strive to achieve a coherent fit with
previous case law dealing with the same or similar topics
whilst at the same time trying to adjust the law to changing
social needs or expectations. The drive to achieve and
maintain doctrinal coherence leads to a search for underlying
principles which can guide the law-pronouncing and law-
making endeavour and ground the claims made that coherent
results are achieved in cases’. (pp.1)
o Lord Reid: ‘People want two inconsistent things; that the law
shall be certain, and that it shall be just and move with the
times… Rigid adherence to precedence will not do… too much
flexibility leads to intolerable certainty’. (pp. 1)
o ‘The tension described by Lord Reid flows from a different
social function of law, that it should reflect and give effect to
conceptions in society of
justice, fair-dealing between people and reasonable outcomes.
If the common law does not achieve that, its legitimacy is put
in doubt. Those conceptions change over time, so this social
function implies that the judges cannot properly avoid some
role in developing the law to keep pace with them... lawyers
and judges try to keep doctrine in alignment with society and
its expectations.’ (pp. 2).
o Niklas Luhmann: ‘The common law is a sub-system within
wider society, differentiated from that society and the general
forms of communication which constitute it. It has its own
language and conceptual apparatus, which is self-referring
and in large measure self-sustaining’.
o The institutional framework within which the common law
operates introduces discipline for the courts. Judges are
obliged to give reasons for their decisions and have to
consider a range of audience.
o Melvin Eisenberg discusses ‘social propositions’: i.e. the
common law is embedded in and draws on wider social norms.
The common law appeals to a general sense of morality and
general perceptions of social need in the wider community.
o General morality provides a practical guide for citizens as to
how to conduct themselves, where they could not hope to
know the law in detail. So alignment of the common law with
Notes on ‘THE COMMON LAW: CONTEXT AND METHOD’, Sir
Philip Sales, Lord Justice of Appeal:
o ‘In both pure common law decision-making and statutory
interpretation, the courts try to distil specific rules which
reflect a more or less stable accommodation suitable for a
particular area of law between disparate values’.
‘Always the courts strive to achieve a coherent fit with
previous case law dealing with the same or similar topics
whilst at the same time trying to adjust the law to changing
social needs or expectations. The drive to achieve and
maintain doctrinal coherence leads to a search for underlying
principles which can guide the law-pronouncing and law-
making endeavour and ground the claims made that coherent
results are achieved in cases’. (pp.1)
o Lord Reid: ‘People want two inconsistent things; that the law
shall be certain, and that it shall be just and move with the
times… Rigid adherence to precedence will not do… too much
flexibility leads to intolerable certainty’. (pp. 1)
o ‘The tension described by Lord Reid flows from a different
social function of law, that it should reflect and give effect to
conceptions in society of
justice, fair-dealing between people and reasonable outcomes.
If the common law does not achieve that, its legitimacy is put
in doubt. Those conceptions change over time, so this social
function implies that the judges cannot properly avoid some
role in developing the law to keep pace with them... lawyers
and judges try to keep doctrine in alignment with society and
its expectations.’ (pp. 2).
o Niklas Luhmann: ‘The common law is a sub-system within
wider society, differentiated from that society and the general
forms of communication which constitute it. It has its own
language and conceptual apparatus, which is self-referring
and in large measure self-sustaining’.
o The institutional framework within which the common law
operates introduces discipline for the courts. Judges are
obliged to give reasons for their decisions and have to
consider a range of audience.
o Melvin Eisenberg discusses ‘social propositions’: i.e. the
common law is embedded in and draws on wider social norms.
The common law appeals to a general sense of morality and
general perceptions of social need in the wider community.
o General morality provides a practical guide for citizens as to
how to conduct themselves, where they could not hope to
know the law in detail. So alignment of the common law with
