Settle Down Children

This is a story about the olden days, when paper was scarce and lawyers were lazy, and when we relied on editors to tell us what the law was. Back then each week or two, the postman would deliver a parcel from the publisher. We would eagerly open it, for it told us what the law was. Cases then had authority. People like Caesar Wright and Bora Laskin applied a scholarly and critical eye to whatever judgments the courts handed down.

And even young lawyers, wise to the ways of the web, might profitably think about why we have law reports:

One of the best traditional explanations is found in the case of Incorporated Council of Law Reporting for England and Wales v. Attorney-General and Others where Russell, Sachs and Buckley L.JJ. all explained why the Incorporated Council of Law Reporting for England and Wales was so beneficial to the community that it deserved charitable status. The case is full of rhetoric about access to the law.

There are some matters which require no proof. The making of the law of this country is partly by statutory enactment (including therein subordinate legislation) and partly by judicial exposition in the decision of cases brought before the courts. It cannot be doubted that dissemination by publication of accurate copies of statutory enactments is beneficial to the community as a whole: and this is not the less so because at least in many instances the ordinary member of the public either does not attempt to, or cannot by study, arrive at a true conclusion of their import, or because the true understanding is largely limited to persons engaged professionally or as public servants in the field of any particular enactment, or otherwise interested in that field. The fact that to perhaps the majority of those who acquire and study a copy of (for example) a Finance Act it constitutes what might be described as a tool of their trades or professions or avocations in no way lessens the benefit to the community that results if accurate versions of that Finance Act are published and not kept like a cat in a bag to be let out haphazard. The same is to be said of the other source of our law, judicial decisions and the reasons therefor, especially in the light of our system of precedent. It is in my view just as beneficial to the community that reliable reports of judicial decisions of importance in the applicability of the law to varying but probably recurrent circumstances, or demonstrating development in the law, should be published; and all the more so if the publication be supervised by those who by training are best qualified to present the essence of a decision correctly and to distinguish the ephemeral from the significant. Per Lord Justice Russell

As to the point that the citation of reports to the judiciary is fatal to the council’s claim, this, if independent of the contention concerning professional user to earn fees, seems to turn on the suggestion that as the judges are supposed to know the law the citations cannot be educative. That, however, is an unrealistic approach. It ignores the fact that citation of authority by the Bar is simply a means by which there is brought to the attention of the judge the material he has to study to decide the matter in hand: in this country he relies on competent counsel to quote the extracts relevant to any necessary study of law on the points in issue, instead of having to embark on the time consuming process of making the necessary researches himself. Indeed, it verges on the absurd to suggest that the courteous facade embodied in the traditional phrase “as, of course, your Lordship knows” can be used to attempt to conceal the fact that no judge can possibly be aware of all the contents of all The Law Reports that show the continuing development of our ever changing laws. The Law Reports (including volume 1 of the Weekly Law Reports) for 1970 alone contain some 5,200 pages: incidentally, if one confined one’s views solely to the three volumes of the Weekly Law Reports there would still remain over 4,000 pages. For my part I feel no diffidence in expressing my indebtedness to counsel in the instant case, as I have done in other cases this term dealing with other subjects, for educating me in the law of charitable purposes by the citation of the 41 authorities previously mentioned. Per Lord Justice Sachs

What then does the evidence establish about the need for reliable law reports and the reasons for publishing them? As the uncontradicted evidence of Professor Goodhart makes clear, in a legal system such as ours, in which judges’ decisions are governed by precedents, reported decisions are the means by which legal principles (other than those laid down by statutes) are developed, established and made known, and by which the application of those legal principles to particular kinds of facts are illustrated and explained. Reported decisions may be said to be the tissue of the body of our non-statutory law. Whoever, therefore, would carry out any anatomical researches upon our non-statutory corpus juris must do so by research amongst, and study of, reported cases.

Professor Goodhart recalls that Sir Frederick Pollock in his paper entitled The Science of Case Law published in 1882 pointed out that the study of law is a science in the same sense as physics or chemistry are sciences, and that the material with which it is concerned consists of individual cases which must be analysed and measured as carefully as is the material in the other sciences. At about the same time the “case system” of teaching law was introduced at the Harvard Law School, which has since become generally adopted. Accurate and authoritative law reports are thus seen to be essential both for the advancement of legal education and the proper administration of justice. As Professor Goodhart says: “Accuracy in The Law Reports is, therefore, as important for the science of law as is the accuracy of instruments in the physical sciences.” Per Lord Justice Buckley

And as a treat link to those who have read this far, the most notable ten English cases of the last hundred years, freely available.