Commentary

A2.106 The role of the courts

Administration and compliance

A2.106 The role of the courts

A2.106 The role of the courts

This article considers the role of the courts in the administration of the direct tax code and the authority of judicial decisions.

The common law judge is not a primary legislator. His or her role is to declare the law made by Parliament and in so doing the Judge is bound by the doctrine of precedent. The House of Lords observed in Kleinwort Benson Limited v Lincoln City Council1 that:

'In the course of deciding the case before him [the judge] may on occasion develop the common law in the perceived interests of justice, though as a general rule he does this 'only interstitially', to use the expression of O. W. Holmes J. in South Pacific Co v Jensen(1917) 244 U. S. 2095, 221. This means not only that he must act within the confines of the doctrine of precedent, but that the change so made must be seen as a development, usually a very modest development, of existing principle and so can take its place as a congruent part of the common law as a whole. In this process, what Maitland has called the 'seamless web', and I myself (The Search for Principle, Proc Brit. Acad. Vol. LXIX (1983) 170, 186) have called the 'mosaic' of the common law, is kept in a constant state of adaptation and repair, the doctrine of precedent, the 'cement of legal principle', providing the necessary stability. A similar process must take place in codified systems as in the common

To continue reading
View the latest version of this document, as well as thousands of others like it, sign in to TolleyLibrary or register for a free trial