This is a book about the arguments that lawyers make in support of their clients and judges make in the course of their opinions. That is not the whole of the law, which extends in every direction and takes many different forms. The pattern of reasoning of those who are engaged elsewhere in the law, in the legislative process or in the regulatory or administrative process, is different. But adjudication, in which lawyers' arguments and judicial opinions hold sway, is typically the place where the law is brought to bear concretely and, to use a current expression, “the rubber hits the road.” No effort to understand and explain the law or the legal process can succeed unless the arguments of lawyers and judges are understood. Those arguments, furthermore, are what people have in mind when they speak about legal reasoning. It is widely believed that legal reasoning is somehow special, not just in its subject matter but in its very form. In a law school class, a professor, intending high praise, may say to a student, “Now you are thinking like a lawyer,” as if a legal education equips a person to think in a way unknown to others. And, indeed, a great deal has been written about the nature of legal arguments. Yet it would be odd if legal reasoning were somehow different from reasoning about other subjects. Doctors and engineers also have their special expertise.

Historical

The problem of keeping the law abreast of changing circumstances afflicts every system in every age. A brief history of the response to the problem in this country was given by Sir Michael Kerr, former Chairman of the Law Commission, in a lecture in 1980:

Lord Justice Kerr, ‘Law Reform in Changing Times’, 96 Law Quarterly Review, 1980, pp. 515, 517–18

SOME OF THE LANDMARKS

One of the essential elements in a system based on precedent is some tolerably efficient method for making the precedents available to those wishing to discover the law. It is through law reporting that the common law is available to the profession and anyone else wishing to know the law. An unreported decision is technically of precisely the same authority as one that is reported, but until the advent of computerised systems decisions that were unreported were more or less inaccessible to all but scholars. (Now they are accessible online in utmost profusion.)

Law reporting in England goes back to the earliest days of the system.

The history of law reporting

There have been five distinct periods in the history of law reporting. The first, lasting for some two hundred and fifty years from 1282 to 1537, was the period of the Year Books. They are not law reports in the full modern sense, since they appear to have been designed more as guides to pleadings and procedure for advocates than as accounts of the decisions of the courts. They were written originally in Norman French and later in law French – a mixture of Norman French, English and Latin. In modern times they have been published in two editions – the Rolls Series (RS) and the Selden Society Series (SS). They are mainly of historical and antiquarian interest. Practitioners virtually never have occasion to consult or cite the Year Books.

Precedents are the raw material from which lawyers and judges distil rules of law. Anyone wishing to state the law on a matter not governed by statute – whether he be a judge, a practitioner, an academic or a student – must look at the decided cases. But how does he use the raw material?

The first principle is that anything relevant may be grist to the mill. If there is a clear decision of the House of Lords which is precisely in point, one need usually search no further. If in that case all five Law Lords agreed that the rule of law is X, then for all practical purposes one may assume that it is X. One may still argue that Y would be a better rule and, if one is advising a client prepared to litigate all the way up to the House of Lords, one may consider with him the practical prospects of persuading the Lords to change the rule. But, subject to that rather remote possibility, lawyers are likely to agree that the rule on that point is X.

At the opposite extreme, search for relevant precedents may reveal nothing more than a decision on the point by a county court judge reported briefly only in the Solicitors' Journal, and a remark to the same effect made in the course of giving judgment on a related point in a decision of the High Court of Australia.

The two sources of law so far discussed – legislation and judicial decisions – dominate the field of law-making within the United Kingdom system. But there are other sources of law for the United Kingdom of which by far the most important is European Union (previously European Community) law. The chapter deals also with textbooks and custom as sources of law and with various forms of quasi-legislation.

European Union Law

European Community law became part of the United Kingdom system as from 1 January 1973 the day on which the United Kingdom became a member of the European Communities. On the international plane this was by virtue of joining the Treaty of Paris of 1951 establishing the European Coal and Steel Community and the two Treaties of Rome of 1957 establishing Euratom and the European Economic Community (EEC).

Since 1957 the system has been in a state of evolution with especially significant developments being the Single European Act of 1986, the Treaty of Maastricht 1992 (known as the Treaty of the European Union or TEU), the Treaty of Amsterdam of 1997 which, inter alia, renumbered the Treaty provisions, and the Treaty of Nice of 2001. Under the Treaty of Maastricht the EEC was renamed the European Community (EC) and the geographical unit formed by the then fifteen Member States became the European Union (EU).

It is difficult to conceive of a legal system in which precedent plays no part at all. One of the fundamental characteristics of law is the objective that like cases should be treated alike. It is therefore natural that other things being equal one court should follow the decision of another where the facts appear to be similar. But in the common law systems precedents have a greater potency than simply as models for imitation. The rules require that in certain circumstances a decision be followed whether the second court approves of the precedent or not. Thus in Re Schweppes Ltd's Agreement [1965] 1 All ER 195, the Court of Appeal, with Willmer LJ dissenting, ordered discovery of documents in a case involving restrictive trade practices. On the same day the same three judges gave judgment in a second case involving the same point – Re Automatic Telephone and Electric Co. Ltd's Agreement [1965] 1 All ER 206. Judgment in the second case was delivered by Lord Justice Willmer who simply said: ‘If the matter were res integra, I should have been disposed to dismiss the appeal in this case for the same reasons as those which I gave in my judgment in the previous case. It seems to me, however, that I am now bound by the decision of the majority in the previous case. In these circumstances, I have no alternative but to concur in saying that the appeal in the present case should be allowed.’

Interpretation is a necessary aspect of communication

Statutory interpretation is a particular form of a general problem – the understanding of meaning or, more broadly still, communication. Like M. Jourdain in Molière's Le Bourgeois Gentilhomme, who did not know that he was talking prose, most people are probably unaware of the extent to which the use of language necessarily involves interpretation. Even the simplest statement usually relies on an understanding of habits, knowledge, values and purposes shared between the author and the recipient of the communication. The point was made in a homely example over a hundred years ago.

There are no major changes since the last edition but some 60 pages of new material have been added. A high proportion of the new material brings the text up to date. But there are a considerable number of topics that cover entirely new or significantly strengthened material. They include: the constitutional changes involving the abolition of the Lord Chancellor; the proposed move of the House of Lords to a Supreme Court and the establishment of a Judicial Appointments Commission; the composition of the House of Lords; the work of the Joint Human Rights Committee of the Lords and Commons; devolution; parliamentary reform including programming and the carry-over of legislation; the parliamentary scrutiny of delegated legislation; the new Court of Appeal practice of delivering composite judgments; developments regarding intervention in litigation by third parties; and the new EU constitution agreed in June 2004. Important new empirical research, especially by Professor Edward Page informs the revision and strengthening of both Chapter 1 and 2.

One of the most important developments since the last edition is the accessibility of a wealth of material (case law, legislation, statutory instruments, parliamentary debates, official committee and governmental reports) online. Web references are given throughout and the index collects references to the website addresses given in the book.

The chief purpose of this book is to improve the understanding of the law-making process. For many years I have taught the English Legal System course at the London School of Economics and an equivalent course taken by non-law students. Experience has suggested to me that there is a great gap in the existing literature which this book attempts to fill. It is something between a book of cases and materials, on the one hand, and a textbook on the other. It presents a large number of original texts from a variety of sources – cases, official reports, articles, books, speeches and surveys. It also, however, contains a good deal of the author's own reflections on the subject-matter. The book deals only with the official forms of law-making on a national scale and therefore says nothing about ‘private’ law-making by lawyers for their clients or by organisations such as trade unions, clubs or companies for their members or shareholders. The book is intended as a companion to the author's Cases and Materials on the English Legal System [9th edn, 2004]. There is no overlap between the two books. They are intended to complement each other and together to provide the basic reading required for a university or equivalent course on the legal system. It is hoped that the book will also be of value to anyone concerned to understand how the law-making process actually operates.

A great deal has been written about the judicial role and no attempt can be made here to cover all aspects of this topic. The issues addressed are only some of those that affect the law-making process but they are perhaps some of the most important. The first is what role is played by the judge himself in the process.

The personal element in judicial law-making

The first extract is from the writings of one of Britain's most distinguished post-war judges.

Lord Radcliffe, Not in Feather Beds (1968), pp. 212–16

The legislative process

Procedure for public bills

The sequence of events in the legislative process from the introduction of a bill to Royal Assent has been described by a senior member of the office of Clerk to the House of Commons, most generously written for the second edition of this book in 1985. (Editorial footnotes introduce more recent developments but comparison of this description against the lengthy Guide to Legislative Procedures issued by the Cabinet Office for the benefit of officials shows that nothing of substance has changed.)