Langbein, John H.

English

Cornell Law Library

Cornell Law Review
Volume 53
Issue 5 May 1968 Article 3
Modern Jurisprudence in the House of Lords the
Passing of London Tramways
John H. Langbein
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John H. Langbein, Modern Jurisprudence in the House of Lords the Passing of London Tramways , 53 Cornell L. Rev. 807 (1968)
Available at: http://scholarship.law.cornell.edu/clr/vol53/iss5/3
MODERN JURISPRUDENCE IN THE HOUSE
OF LORDS: THE PASSING OF
LONDON TRAMWAYS
John H. Langbeint
On July 26, 1966, Lord Chancellor Gerald Gardiner announced
that the House of Lords had resolved that it might "depart from a
previous decision when it appears right to do so."1 The Lords' brief
"Practice Statement" 2 is a monument that marks, in Professor Leach's
phrase, the fall of the last "bastion of rigid stare decisis."3 The capitula-
tion of the most ancient common law court of last resort leaves none
unable to overrule a prior decision.
Lord Gardiner's afinouncement wrote the dpitaph not simply for
an ill-advised rule of law, but for a whole school of legal thought. It
completed in the mother jurisdiction a revolution that has coursed
through the common law in this century, changing judicial concep-
t A.B. 1964, Columbia University; LL.B. 1968, Harvard University.
1 [1966] 1 W.L.R. 1234 (H.L.). The full text:
Their Lordships regard the use of precedent as an indispensable fofindatioi
upon which to decide what is the law dnd its application to individual cases. It
provides at least some degree of certainty upon which individuals can rely in
the conduct of their affairs, as well as a basis for orderly development of legal
rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent
may lead to injustice in i pinticular case and also unduly restrict thie proper
development of the law. They propose, therefbre, to modify their present
practice and, while treating former decisions of this House as normally binding,
to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of distuirbing retro-
spectively the basis on which contracts, settlements of property atnd fiscal arrange-
ments have been entered into and also the especial need for certainty as to
the criminal law.
This announcement is not intended to affect the use of precedent elsewhere
than in this House.
2 The announceifient constitutes a departure in form as Well as c6ntenit. "There was
no pending case that raised the issue . . . . The judges and their refo-ining Lord
Chancellor simply got together afid decided to maki the chimge." Lewis, t'he Law:
Britain Breaks with Precedent, N.Y. Times, July 31, 1966, § E, at 6, col. 1.
Although courts are now widely permitted by statute to promulgate upon their oWn
initiative rules of practice and procedure for the conduct of litigation, judicial inigation
of substantive law reform is highly novel. But such action is not unknown: see the
recent "administrative memorandum" of the New Jersey Supreme Coiurt to its inferior
courts, repudiating an earlier dictum coicerning the aplilieability, of the death pehalty
when not initially sought by the prosetution. Memorandum To: AU Superior and County
Court Judges, Re: Waiver of the Death Penalty, 45 N.J. 501, 213 A.2d 0 (1965).
3 Leach, Revisionism in the House of Lords: The Bastion of Rigid Stare Decisis
Falls, 80 HARv. L. REv. 797 (1967).
CORNELL LAW REVIEW
tions about the nature of decisional law and the role of the courts in
promulgating it.
I
The Lords' "Practice Statement" effectively overruled one the
most celebrated cases in English jurisprudence, London Tramways Co.
v. London County Council,4 the 1898 decision that firmly committed
the Lords to the doctrine that they were irreversibly bound by their
own prior decisions. Although an attitude of sanctity toward precedent
hovered over English law for most of the nineteenth century, 5 not until
London Tramways was the rule of irreversible precedent made absolute.
The case involved a dispute over accounting principles. The
defendant county council had exercised a statutory power of eminent
domain over plaintiff's streetcar facilities. The council wanted to
compute compensation on the basis of cost of construction less deprecia-
tion. The company sought payment based on capitalized earnings.
In an earlier case,6 the House of Lords had held that the statute
prohibited use of the latter method; both the Queen's Bench and
Court of Appeals treated the case as controlling. The sole issue on
appeal to the House of Lords was whether it could disaffirm the former
decision if so minded. Held Lord Chancellor Halsbury: "a decision
of this House once given upon a point of law is conclusive upon this
House afterwards, and . . . it is impossible to raise that question
again .... -7 Further, "nothing but an Act of Parliament can set right
that which is alleged to be wrong in a judgment of this House."8
Lord Halsbury's opinion is principally concerned with establishing
the historicity of the doctrine by reviewing a string of nineteenth
century dicta. Scholars have not considered the venture a success. Sir
Frederick Pollock devoted several pages of his Jurisprudence9 to a con-
4 [1898] A.C. 375.
5 See Beamish v. Beamish, 9 H.L. Cas. 274, 11 Eng. Rep. 735 (1861).
6 Edinburgh St. Tramways Co. v. Lord Provost of Edinburgh, [1894] A.C. 456
(Scot.). Consolidated under this case name were two appeals, one the Scottish case, the
other from the decision in London St. Tramways Co. v. London County Council,
[1894] 2 Q.B. 189. Consequently, the 1898 case raised not only the same issue, but between
the same parties, and "was all but a question of res judicata." Stevens, The Role of a Final
Appeal Court in a Democracy: The House of Lords Today, 28 MOD. L. REv. 509, 514
n.13 (1965). It is consummate irony, therefore, that Professor Dawson can treat Lord
Halsbury's attempt to declare a timeless rule of stare decisis in 1898 as mere dictum.
J. DAwsoN, THE ORAcrFs OF =hE LAw 91-92 (1968).
7 [1898] A.C. at 379.
8 Id. at 381.
9 F. PoLLock, A FIRST BOOK OF JUIUsPRUDENcE 832-38 (5th ed. 1923).
[Vol. 53:807
MODERN JURISPRUDENCE
vincing refutation of Halsbury's claim that the rule of irreversible
precedent had been "established now for some centuries."' 0 A con-
temporaneous note in the Law Quarterly Review commended the
result, but dismissed the assertion of antiquity as "not only unproved
but against the evidence.""
When he turned from history to logic, Lord Halsbury argued that
only by the doctrine of irreversible precedent can the need for cer-
tainty be served. Rigidity would claim its victims, he admitted, but
otherwise nothing would ever be settled:
Of course I do not deny that cases of individual hardship may
arise, and there may be a current of opinion in the profession that
such and such a judgment was erroneous; but what is that occa-
sional interference with what is perhaps abstract justice as com-
pared with the inconvenience-the disastrous inconvenience-of
having each question subject to being reargued and the dealings
of mankind rendered doubtful by reason of different decisions,
so that in truth and in fact there would be no real final Court
of Appeal?12
II
Lord Halsbury's speech is remarkable for its failure to comprehend
certainty as a virtue which need not be served with exclusivity to be
served well. The opinion does not perceive a middle ground between
a law without authorities and a law inexorably determined by authori-
ties. Yet, speaking at the end of the nineteenth century, Lord Halsbury
was not without models for the middle path. The evolution of England's
judge-made common law exemplified such a system,' 3 although Lord
Halsbury insisted on another reading. Moreover, in the United States
the courts had developed conspicuously their power to discard prece-
dent,14 and almost from the moment London Tramways was decided,
English jurists were troubled to explain the ability of American courts
"to pursue a safe course between the extremes of a never and an ever
changing law."' 5
English academics have rationalized the American practice as
characteristic of either our federalism or our constitutionalism. Pro-
10 [1898] A.C. at 379.
11 14 L.Q. Rxv. 331, 332 (1898).
12 [1898] A.C. at 380.
13 See J. DAWSON, supra note 6, at 1-99.
14 E.g., Legal Tender Cases, 79 U.S. (12 Wall.) 457, 553 (1870), overruling Hepburn
v. Griswold, 75 U.S. (8 Wall.) 603 (1869).
15 Hutcheson, Book Review, 45 HARv. L. Rav. 212, 216 (1931).
1968]
CORNELL LAW REVIEW
fessor Goodhart emphasized federalism and the American law school
case-method training. The great bulk of American case law inevitably
results, among so many jurisdictions, in divergent results on close
questions, and the cross-fertilizing, nonauthoritarian character of
American legal training juxtaposes jurisdictions to teach the law as
a set of skills rather than a defined body of known wisdom.1 6 To
Rupert Cross "the momentous nature" of constitutional issues and
"the difficulty of amending the Constitution" justified the American
departure from the practice of the House of 'Lords.T English jurists
dwelt frequently on this notion, unconcerned that it failed to explain
overrulings in non-constitutional cases.
As late as 1961 A. W. B. Simpson contended that "it is difficult to
detect any sharp breach of continuity in the development of the com-
mon law before and after" London Tramways.18
All that the House lost after 1898, and all that other courts which
are bound have lost, is the power to refuse to follow a limited
number of earlier decisions without distinguishing them. Such a
power was very rarely exercised before 1898; its loss was not there-
fore very momentous, for the development of new Common Law
only rarely took place through the exercise of such a power.' 9
Though there were few reported instances in which the irreversible
precedent rule defeated a worthy litigant, they were always noticeable.
In a single volume of the King's Bench reports, Professor Goodhart
counted six cases in which "one or more of the judges state that they
might have decided the case before them differently if they had not
been bound by a prior decided case. '20
The real incidence of the rule was preventive: it served through-
out the twentieth century to deter the bringing of litigation that
would have required the overturning of a previous decision. Indeed, it
is this aspect of the rule that must have impelled the House to take the
extraordinary step of discarding it by something akin to press a release.
16 A. GOODRART, Case Law in England and America, in ESSAYS IN JURISPRUDENCE AND
THE COMMON LAW 65-74 (1931).
17 R. CROSS, PRECEDENT IN ENGLISH LAW 14 (1961). Accord, Note, 14 L.Q. REv. 331-32
(1898).
18 Simpson, The Ratio Decidendi of a Case and the Doctrine of Binding Precedent,
in OXFORD ESSAYS IN JUISPRUDENCE 148, 155 (A. Guest ed. 1961).
19 Id. The passage emphasizes, with original italics, the celebrated propensity of
the House to evade London Tramways by tenuous distinguishing of contrary precedents.
The intellectual gymnastics are studied at some length in R. CROSS, PRECEDENT IN ENGLISH
LAw (1961).
20 A. GOODIART, supra note 16, at 55. The six cases (in Volume I of the 1926 Klhg's
Bench Reports) are cited at author's note 26.
[Vol. 58:807
MQDERN JURISPRUDENCE
III
What Lord Halsbury feared as "the disastrous inconvenience
of having each question subject to being reargued" has been under-
stood in the American commentary to be merely one side of the prob-
lem. The other is the injustice inherent in throwing a veil of infalli-
bility around acknowledged error.
The capacity to overrule involves the perception and admission
of error-the expectation of error as a natural and regular phenom-
enon. If the courts, the interpreters of the law, are considered human
institutions spinning a human product, then fallibility must be fore-
seen and the confession of error admired. But if law is the mind of
God revealed to man, then error is the mark of faithless judges or
confused deities. What the American realists derided as the slot machine
theory has long been the received wisdom in England: judges do not
make the law, they find it in the interstices between the scriptures from
above and the records from the Plantagenets.
The treatment of error marks a great cleavage between the two
schools of jurisprudence that have contended throughout the twentieth
century for the adherence of common law courts. Less than a decade
separates London Tramways from Roscoe Pound's St. Paul address on
"The Causes of Popular Dissatisfaction with the Administration of
Justice."21 But between the pragmatism of the latter and the dogmatism
of the former lies the broadest intellectual gulf in jurisprudence. As
Pound later put it:
Jurisprudence is the last in the march of the sciences away from the
method of deduction from predetermined conceptions. The socio-
logical movement in jurisprudence, the movement for pragmatism
as a philosophy of law, the movement for the adjustment of princi-
ples and doctrines to the human conditions they are to govern
rather than to assumed first principles, the movement for putting
the human factor in the central place and relegating logic to its
true position as an instrument, has scarcely shown itself as yet in
America.22
The revolution for which this passage was a battle cry has been largely
won in the United States, but barely begun in England. Lord Gardiner's
announcement now invites the English courts to join in the business
of social reform, a role long familiar in America.23
21 29 A.BA. Rep. P~rt 1, at 395 (1906),
22 Pound, Liberty of Contract, 18 YA.E L.J. 454, 464 (1909).
2? Befo.re becoming Labor's Lord Chancellor, Gardiner was already known as an
advocate of moderpizgtion in courts .nd doctrine, including the creatlon of a §upreme
CORNELL LAW REVIEW
Exercise of the power to overrule precedent redirects the judicial
function from the search for authority to the quest for rational results.
"[L]ogic, and history, and custom, and utility, and the accepted stan-
dards of right conduct," wrote Cardozo, "are the forces which singly
or in combination shape the progress of the law. Which of these forces
shall dominate in any case, must depend largely on the comparative
importance or value of the social interests that will be thereby promoted
or impaired. ' 24 If courts are lawmakers within their sphere, judges
must test the wisdom of a decision by criteria broad enough to weigh
the social consequences of the decision as well as its logical correspon-
dence to precedent. To courts so minded, precedent remains probative,
but not conclusive.25
IV
Although English writers have minimized the negative effects of
London Tramways, none has attempted to reconcile it with the prag-
matic values of sociological jurisprudence. In its institutional aspect,
therefore, the fall of London Tramways restores the House of Lords to
the posture of a genuine supreme tribunal. The Lords need no longer
plead to Parliament to correct the Lords' errors. The House can be
master of its own house. "Nowadays Parliament is much too busy with
economic crises and such things to know or care about correcting most
judicial mistakes. It thus becomes sheer cynicism to say, 'Go to Parlia-
ment for Reform.' 26
If haste is ever a virtue, it is surely not an English virtue. The
fruits of Lord Gardiner's announcement have in its first year been nil.
No overrulings have come forth; there is still no third party benefici-
ary contract,2 7 and the law of torts knows no action against the English-
tribunal "able to reconsider any previous decision." Gardiner & Jones, The Administra-
tion of Justice, in LAw REFoRm Now 15, 16 (G. Gardiner & A. Martin eds. 1963).
24 B. CARmozo, THE NATURE OF Ti-E JUDICIAL PROCESS 112 (1921) (footnote omitted).
25 I am ready to concede that the rule of adherence to precedent, though
it ought not to be abandoned, ought to be in some degree relaxed. I think
that when a rule, after it has been duly tested by experience, has been found
to be inconsistent with the sense of justice or with the social welfare, there
should be less hesitation in frank avowal and full abandonment.
Id. at 150.
26 Lewis, supra note 2.
27 Tweddle v. Atkinson, 1 B. & S. 593, 121 Eng. Rep. 762 (1861). See Beswick v.
Beswick, [1967] 3 W.L.R. 932 (H.L.), decided 11 months after the 1966 Practice Statement,
rejecting the attempt of Lord Denning, M.R., in the Court of Appeal to permit a third
party beneficiary to enforce a contract in her own right. [1966] Ch. 538.
[Vol. 53:807
1968] MODERN JURISPRUDENCE 813
man who lets his horse wander the roadways.2 But the inquiry is still
premature. The toppling of London Tramways will not of itself rescue
English law from its century of petrification, or the House of Lords
from what had become burgeoning disrepute.29 But Lord Gardiner's
announcement is the essential prerequisite, not merely because of the
central importance of a modern concept of stare decisis, but, more
fundamentally, because it implies a crucial change in attitude toward
the role of courts and decisional law in the enterprise of government.
28 Searle v. Wallbank, [1947] A.C. 341.
29 Lord Gardiner himself had urged the abolition of the House of Lords as the
English court of last resort. Gardiner & Jones, supra note 23, at 16.


Modern Jurisprudence in the House of Lords the Passing of London Tramways

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