The present paper takes a fresh look at the issues of certainty of law and the problem of reviewability of past decisions. The author draws on experience in teaching law to students from exact sciences, required to study business law or intellectual property principally for professional certification purposes. They seek knowledge of the law in order to enhance their business and administrative skills and in order to deal with legal issues in a business and professional environment. While they look for exact rules, they find that even daily occurrances require exercise of judgment. The paper is also concerned with those in administrative agencies charged with implementing public policy, who seek to implement exact rules, but who may, even unwillingly, have to exercise discretion.

The author’s response is that law would be more comprehensible to students of a quantitative discipline if they did not take the concept of law as command as their point of departure. Rather, as with mathematical subject matter, they might begin with a concept of law as a system susceptible to logical analysis, where rules of law are bound by rules of systems logic. The aphorism that “The life of the law has not been logic” but “experience” never meant the converse, that is, that law is not logical. The elements of the discipline of the law are systematically interrelated. Lawyers will know that it is not always possible to provide absolute rules and fixed responses. Law as a discipline requires legal reasoning to be consistent with law as a whole system that subsumes within it not only legal principles, written and unwritten, but also intent and purpose, equity and discretion.

The last thing the author wants to suggest, by reference to systems dynamics, is that there is anything in legal decision-making that is simply quantifiable—nor, that legal decisions can be made by putting the data (the facts and the rules) through a computer. Facts must first be determined; rules may not be exclusive rules; and basic rights cannot be ignored. However, applying the logic of mathematical systems can also be fruitful in legal reasoning. Primarily, it emphasizes that the particular law of the case is also subject to the “feedback” from the whole system of the law. Black-letter rules are not always exhaustive statements of the law. And where the result tends to be absurd or overly harsh it may require rethinking in terms of reasonableness and due process.

1. A Comparative Approach in the Common Law
“Every legal system seeks to achieve three purposes…, to secure justice, to promote the common good, and to provide for certainty of law. In English law, the goal of certainty of law comes first. Not certainty through the law, that is it is not security against breaking the law that is intended here. Rather, it is the certainty of the law itself. The requirement here is two-fold: that law not be subject to conflicts of opinion, but rather that the law be authoritatively laid down. That is to say that there is positive law, that this positive law be clear and determinable beyond doubt.”2 #p#分页标题#e#
Gustav Radbruch, The Spirit of English Law

A. Stare Decisis and Certainty of Law vs. Reviewability of Past Decisions
The author had come to the law from East Asia studies. Therefore, he eagerly accepted an offer to teach business law and intellectual property in Hong Kong. The students were business and engineering students who were required to take these courses for professional certification. Their preparation for university had relied heavily on a tradition of transmission of exact information suitable for exact assessment in standardized testing. Nothing seemed to disturb them more about the traditions of law teaching than the legacy of re-examining decisions once made to determine whether or not they would have been made the same way a second time. Obviously the perspective from which Sir Karl Popper had argued, that scientific certainty advances by way of “conjecture and refutation”,3 had not made much headway in a school of pedagogy that rested upon the absoluteness implicit in standardized testing.

However, not only students trained in a pedagogy that puts more emphasis on subject matter suitable for assessment by standardized testing, than on reasoning powers, are among those calling for certainty in the law. There is a long tradition of stare decisis in the common law itself. That is, that we should follow legal precedent so that we may rely on principles, soundly established on material facts in one case, being followed in similar future cases.4 The doctrine applies according to the hierarchy of the courts, the lower court being bound to follow the higher. Because of the doctrine of stare decisis, the role of precedent is stronger in the English common law than it is in the civil law traditions—therefore, the civil law lawyer may not be disturbed at reaching what appears to be a conflicting result in any given case, because he believes that the decision follows the law not the cases. Common law courts do not hesitate to fill in the gaps of the law. Lawyers and the public then follow the “case law”.

Some call this “judge-made law”. But, the historical perception is a little different. Common law courts are presumed to attempt to follow the law where it can be found, whether written or unwritten, but also to apply it according to a concept of justice in keeping with the times and the situation. This, perhaps somewhat self-deceptive tradition, was once very eloquently described, with remarkably progressive language for its time, by a learned senior judge of the English Court of Appeal:

… judges cannot make new law by new decisions; they do not assume a power of that kind: they only endeavour to declare what the common law is and has been from the time when it first existed. But inasmuch as new circumstances, and new complications of fact and even new facts, are constantly arising, the judges are obliged to apply to them what they consider to have been the common law during the whole course of its existence and therefore they seem to be laying down a new law, whereas they are merely applying old principles to a new state of facts.5 #p#分页标题#e#

It can be seen that these words can be understood to be both reactionary and progressive, depending on who applies them. They attempt to reach back to “what the common law is and has been from the time…it first existed”, and also attempts to account for “new circumstances,…new complications of fact and … new facts,” consistent with a timeless concept of justice—not consciously to be tied to an outdated past, and certainly not promotive of dramatic change.6

The longstanding doctrine of reliance on precedent has colored the history of the common law wherever it is practised, and wherever its influence reaches. “Every legal system seeks to achieve three purposes,” a German legal theorist writing on the history of English law tells us, “to secure justice, to promote the common good, and to provide for certainty of law.”7 “[T]he goal of certainty of law comes first,” in English law, he tells us, not simply certainty against breach of legal rules so much as the certainty of the law itself. There is a presumption in the history of the common law that unwritten law is already there prior to any legislation, which may, of course, modify, amend, or supersede it. The law we follow, and which protects our rights and interests, is presumed to come down to us from time immemorial in the case precedents. Departure from precedent, therefore, appears to be almost like departure from those principles themselves.

If those precedents are principles worthy of our continuing respect, we ought to be able to arrive at the same conclusions if we re-think the solutions of the problems. For that very reason, we should be disturbed if upon re-thinking solutions, we do not reach the same conclusions. Thankfully, the rigidity that English law seemed to have fallen into in the 20th century, and that Radbruch only touches upon in his paper that dates from 1946, has eased significantly—at least in the literature. The position taken by Lord Denning in a number of his decisions or dissents, and summarized in the Romanes lecture,8 in which he advocated that the House of Lords return to a policy of re-thinking its own precedents when they become legally questionable (something they had not done for 60 years) certainly played an important role in this development. His judgments and dissents argued that unreasoning reliance on precedent alone seemed to conflict with the mandate for the courts to seek to justify a decision, not simply adopt one blindly from the past.

Lord Denning must have been one of the most courageous of English judges of recent times, yet, even he felt compelled to quote from a precedent case already 90 years old at that time, in order to make this point in Candler v Crane Christmas.9 Moreover, the reader will also perceive that the perspective Radbruch characterizes has by no means vanished from the profession, the courts, or government administrative agencies.

It was not always unheard of for a higher court to change its mind. However, in 1898, the House of Lords did bind itself to its own precedents, it thought, in the interest of certainty of law and of avoiding unnecessary litigation over the same points.10 Yet, however, noble the motivating purpose, the doctrine did contribute to an already existing rigidity in the law. In the years in which Lord Denning was Master of the Rolls from 1962-1982, and even before that,11 he attempted to test the waters for reversal of that position on a number of occasions, particularly where he considered that a precedent decision was decided wrong in the first place.12 Thanks largely to these efforts—and despite reproaches from leading law lords for the departure from judicial discipline this sometimes entailed—the House of Lords did relax its position in its “Practice Statement” in 1966.13 #p#分页标题#e#

Nevertheless, if precedents do represent principles worthy of our continuing respect, we ought to be able to arrive at the same conclusions if we re-think the solutions of the problems. For that very reason, we should be disturbed if upon re-thinking solutions, we do not reach the same conclusions. In any event, there are basic assumptions, or propositions, that can and must be made to enable us to rely upon the system of law as a reasoned one and not simply as a set of orders. It is some of these, which are set out below.

Individual judges may reflect different attitudes or approaches in their decisions. But courts in general are presumed to be following a consistent tradition of interpretation and application of the law. The thoughtful and disciplined approach to statutory interpretation revealed in the study of such decisions has been demonstrated in a number of learned and very diverse texts.14 This essay merely attempts an outline of an implicit sense of purposiveness and logical unity embodied in the tradition of the law, but also in studies of statutory and judicial interpretation such as those cited. Those forces have gained strength in recent years, re-emerging in many notable leading decisions. On the other hand, the reputation for rigidity in English law, and in its colonial legacy, has not dissipated. I believe, however, that greater responsiveness can emerge in the law where the principles that we learn from the tradition of legal and statutory interpretation are followed.

In this paper, I have attempted to illuminate the role of certain propositions that, I believe, follow from the tradition of interpretation. These propositions are, therefore, NOT rules of law. They are a search for common sense rules of logic, or the implicit application of a sense of Legal Dynamics:

- In the decision-making of the courts of Hong Kong: a jurisdiction which owes formation of its outlook, both in the judiciary and administration, to a somewhat rigid colonial legacy, which nowadays can also be seen to attempt slowly to adjust to a new situation in common law legal thinking;

- In the courts of England, where the reader will see from recent decisions and authorities cited below, that many of the rigid notions of a hundred years ago are now history (as Lord Devlin describes in the quotation at the head of the following section), and decisions have evolved to meet such challenges as, for example, arise from the numerous new functions that government has taken on in recent years and integration into European Community law. These decisions will also be a guide to legal unification of the courts of the rest of the common law world; and

- In more recent decisions in the courts of the United States: There, particularly in the areas of intellectual property and information technology law—decision making on the frontiers of the law—which must inevitably impact on the thinking of courts in the entire common law world.