the extracts ought to help explain why metaphors such as ‘uncharted seas’ are so easily applied to the common law. One question that the civilian might wish to ask is this. Is the mentality of the common lawyer too conservative to achieve much in the way of law reform? 5 What is meant by prospective overruling? (Cf Kleinwort Benson v Lincoln CC, p21.) 6 How can the executive make its view known in an English court? 7 How might the role of a court influence the development of the law of obligations? If the duty of a trial or an appeal judge were to change, would this, in the longer term, lead to changes in legal thinking itself? 8 Is Lord Simon saying that cases do not lay down general principles? THE ROLE OF PRECEDENT
On the continent, the civil codes are seen as providing both structure and stability to the law. In an uncodified system like English law, this structure and stability has, of course, to come from elsewhere and this is the reason why precedent assumes such importance in theory, if not so much in practice. It is important for law to appear as a rational discourse, and part of this rationality
I hope it may be worthwhile to make one or two general observations on the
effect on the precedent system of the virtual abolition of juries in negligence
actions. Whether a duty of reasonable care is owed by A to B is a question of
law… When negligence cases were tried with juries, the judge would direct
them as to the law… The question whether on the facts in that particular case
there was or was not a failure to take reasonable care was a question for the jury.