+(,121/,1(

Citation:
G. Tedeschi, Prospective Revision of Precedent, 8 Isr.
L. Rev. 173 (1973)

Content downloaded/printed from HeinOnline

Fri Nov 23 15:10:25 2018

-- Your use of this HeinOnline PDF indicates your

acceptance of HeinOnline's Terms and Conditions
of the license agreement available at
https://heinonline.org/HOL/License

-- The search text of this PDF is generated from

uncorrected OCR text.

-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:

Copyright Information

Use QR Code reader to send PDF

to your smartphone or tablet device
 ISRAEL LAW REVIEW
Vol. 8 April, 1973 No. 2

PROSPECTIVE REVISION OF PRECEDENT

By G. Tedeschi*

The Problem
1. Innovations in case law have traditionally always had retroactive effect
also, first on the case in question, and therefore on past conduct, and then, to
the extent that authority attaches to the precedent or it is at least followed
in practice, on other cases subsequently heard, although the conduct involved
here also preceded the declaration of the new rule. Justice Holmes, in a
dissenting opinion of 1910, wrote: "I know of no authority in this case to say
that in general state decisions shall make law only for the future. Judicial
decisions have had retrospective operation for near a thousand years".:
It is fairly certain that Justice Holmes had the Common Law world in
mind, but the picture would not be different if we looked at the situation
elsewhere. In France as well, for instance, the ritroactivitd des nouvelles
2
jurisprudenceshas been considered as une infirmiti du syst~me jurisprudentiel.
Nevertheless, it is a fact that the situation excites some consternation among
lawyers and the public, which is particularly strong in those matters where
retroactivity is singularly severe in its effects and the legislature normally
refrains from imposing it, although not forbidden to do so under constitutional
principles (laws being interpreted and applied non-retroactively in the absence
of any express provision in this regard) and in those instances where there
was reliance, explicit or presumed, by the parties on the rule which is
subsequently abandoned. Because of this disturbing feeling, case law, it would
appear, endeavours to abstain from new departures which it might otherwise
embark upon, at times to the extent of forbidding innovation by adopting a
rule of unchangeable precedent-which is one way, even if not the most
desirable, of radically solving the problem. Indeed it cannot be said that
the reliance placed by the parties on the old rule is properly the sole ground

* Professor of Civil Law, Hebrew University of Jerusalem.

1 Kuhn v. Fairmont Coal Co. 215 US 349, 372 (1910).
2 Roubier, Le droit transitoire (Conflits des lois dans le temps) (2nd ed., 1960) no. 56,
p. 248. Cf. G6ny, Methode d'interpritation (1899) 430 et seq.; Lambert, Etudes de
droit commun ligislatif, vol. I, p. 20.
 ISRAEL LAW REVIEW [Is.L.R. Vol. 8

for a correct solution of the matter. The new rule may possibly be so much
more just than the old that it warrants ignoring all reliance upon the previous
rule.3 But the reverse is also conceivable, and that is the assumption which the
legislature regards as prevailing when it does not order its innovations to be
retroactive.
Again it is a fact that, as against the "thousand years" of Justice Holmes,
it is more than one hundred years since a movement began in the United
States to correct or confine the drawbacks which may arise from implementing
changes in case law by limiting as far as can be the sacrifice of public
anticipations. First there were isolated judgments which proceeded upon the
special circumstances of the cases concerned, without the judges directing
their minds to the general problem. Then came a maturer awareness of the
new orientation in the emergence of which outstanding lawyers, among them
Wigmore and Cardozo, participated. This movement manifested itself in
particular in the matters already suggested above 4 and where there was
occasion for assuming that the parties had indeed relied upon the old rule.5
In other countries lawyers did not remain uninfluenced by this American
trend. As late as 1966, W. Friedmann wrote that prospective overruling

3 On the consideration whether the innovation will achieve its deserved result without
retroactive application (when, for instance, deterrence is the main object), see
inter alios S.R. Shapiro, "Prospective or Retroactive Operation of Overruling
Decision" 10 A.L.R. 3rd, 1371.
4 These matters are primarily title to property, questions of personal status involving
the family and commercial transactions. See the analysis of the cases in C.M.D.,
"Limited Retroactivity of Overruling Decisions" (1938) 25 Va.L.R. 210; Note,
(1947) 60 Harv. L. R. 437; Note (1965) 51 Va. L. R. 201. There is also agreement
that an adverse change with regard to criminal responsibility should not be applied
retrospectively. Taxation matters have in this regard attracted special attention in
W. Germany. See Grunsky, Grenzen der Riickwirkung bei einer Aenderung der
Rechtsprechung (Karlsruhe, 1970) 6. (Abridged English translation: "Limitations
to Retroaction in Cases of Amendments to Precedent" 3 Law and State (Tilbingen,
1971) 73). In America on the other hand the trend with regard to taxation
matters is not uniform: Note (1947) 60 Harv. L. R. 437, 444 et seq.; Shapiro, op. cit.,
1437 et seq. Compare the list of matters given in the Practice Statement (Judicial
Precedent) of the House of Lords in 1966 (Hansard Report 677 (July 26, 1966);
[1966] 1 Weekly L.R. 1234 (H.L.)): "[their Lordships] will bear in mind the danger
of disturbing retrospectively the basis on which contracts, settlements of property
and fiscal arrangements have been entered into and also the special need for certainty
as to the criminal law". In American law the problem of non-retroactivity arises also
in connection with the abolition of immunity in torts (in order to enable the person
responsible to insure himself).
5 As to whether the question of "reliance" is to be dealt with on the basis of proof
or assumption, see inter alia Note (1947) 60 Harv. L.R. 437, 440; C.M.D., op. cit.,
pp. 213 et seq.; Note (1961) 71 Yale L.J. 907, 945-948; Note (1966) 51 Minn. L. R.
79, 80, 82. Cf. Grunsky, op. cit., pp. 26, 27 (English abridgement, pp. 88-89).
No. 2, 1973] PROSPECTIVE REVISION OF PRECEDENT 175
"appears to be virtually unknown outside the United States",' but in recent
years there also, lawyers have begun to deal with the question which they had
previously ignored, regarding it as an irreparable defect and consoling
themselves by such varying considerations as the infrequency of the cases in
which the parties truly rely on earlier case law or the infrequency of situations
in which the changes could not have been foreseen.
Thus, in contrast to the eleventh edition of Salmond on Jurisprudence
7
where it is said that "it is true that [case law] is invariably retrospective",
the twelfth edition expresses a different view: "it is by no means true that it
must be retrospective".' Likewise Diplock L. J. echoes: "the rule that a new
precedent applies to acts done before it was laid down is not an essential
feature of the judicial process"?
So also with regard to the Practice Statement (Judicial Precedent) issued
by Lord Gardener L. C. in 1966 and the reservation therein with regard to
certain matters, it has been asked whether the intention was not that "the
Law Lords were prepared to overrule with prospective application only"? °
In Western Germany interest in the American trend to prospective revision
has been considerable, and there also the tendency to give prior notice of the
innovations which the judges have in mind to introduce in the case law has
been marked.'1
In France, Roubier advanced the idea "s'il ne serait pas possible de privoir,
et de rigler, les conflits entre des jurisprudences successives",12 an idea which
raises doubts whether indeed that irremediable "infirmitg du systme
jurisprudentiel" exists, about which, as we have seen, he speaks elsewhere.

6 W. Friedmann, "Limits of Judicial Lawmaking and Prospective Overruling" (1966)

29 Mod. L. R. 593.
7 Salmond, Jurisprudence (11th ed., 1957) 148. Cf. Cross, Precedent in English Law
(2nd ed., 1968) 29: "retrospective judicial legislation must surely be a necessary evil".
8 Salmond, Jurisprudence (12th ed., 1966) 127-28. It may be observed that G.
Williams, who edited the l1th edition of Salmond, addressed himself later to the
prospective innovations in American case law in his treatise, The Criminal Law (2nd
ed., 1961) para. 106.
9 Diplock, The Courts as Legislators (1965) 17. Cf. Dias, "Precedents in the House
of Lords" (1955) Camb. L.J. 153, 155. And see infra text and n. 26.
10 Leach, "Revisionism in the House of Lords" (1967) 80 Harv. L. R. 797, 802.
11 Cf. Grunsky, op. cit.; Knittel, Zum Problem der Riickwirkung bei einer Aenderung der
Rechtsprechung-Untersuchung zum deutschen und US-amerikanischen Recht
(1965); Kisker, Die Riickwirkung von Gesetzen (1963) 120-134; Friedrich, "Die
Riickwirkung im Steuerrecht" (1951) Stu. W. Sp. 81, 116; Vogel, "Zur Frage der
Riickwirkung von Steuergesetzen" (1960) NIW 1182; Weisensee, Riickwirkende
Anwendung von Entscheidungen des Bundesfinanzhof?" (1961) Stu. W. Sp. 17;
Miiller, "Zur Bindung des Bundesfinanzhofs an seine Rechtsprechung" (1961) Stu. W.
Sp. 683; Zweigert/Kbtz, "Die Bedeutung des Riickwirkungsverbot fUr die Auslegung
von Steuergesetzen" (1969) BB 453.
12 Op. cit., supra n. 2, no. 7, p. 24 et seq.
 ISRAEL LAW REVIEW [Is.LR. Vol. 8

Subsequently, however, he confronts the suggestion with the existence of "un

obstacle insurmontable dans notre droit: c'est l'impossibilitj oit Von est de
diterminer, avec une precision suffisante, le moment oii la jurisprudence est
fixie"; since in France what is determinative is not the isolated precedent but
a series of uniform precedents. This objection does not appear unanswerable
because in any event every series of precedents must commence with an initial
precedent (although that does not attain decisive authority) with regard to
which the question may be asked whether it is proper to give effect to the
innovation by applying it retrospectively or to limit its retroactivity or even
avoid it by prior public announcement of the new trend which the judges
have in mind to introduce.
At all events it is clear that in many respects the question varies with
different countries. The intention here is to consider the ideas that have been
expressed about this tendency in as far as these are of interest for Israel law
and to suggest the position that may be taken up in this area of our law.

2. Theoretically indeed the problem of retroactivity finds no place when

the very idea of new departures in case law is denied. If the legal system is
assumed to be complete, it embraces all answers, at least by implication. It
follows that when the solution of a question is given in a judgment, it is not
deemed to have retrospective application since it is regarded as having already
existed in the legal system before its actual formulation and revelation.
However, the premiss of such reasoning now appears to many to be arbitrary
and fictitious. Even were it allowed that the apparent innovation need only
be regarded as corrective of errors previously made by case law or by
prevailing professional opinion, that would not affect the state of mind of
the public, at least where the change in question was not foreseeable.
Theoretically, again, the problem is narrowed down when in a particular
legal system and in respect of particular instances the precedent is regarded
as being not open to correction. The question of retrospective application
does not arise within those areas in which the very possibility of innovation
is denied. But whatever the accepted theory may be, there is no doubt that in
practice precedents are on occasion corrected; and the surreptitious manner
in which under these circumstances the change is made cannot reduce the
difficulties created for those who have acted until then in reliance on the
apparent legal position. On the contrary the theory itself that precedent
cannot be corrected will indeed strengthen the reliance which people place
upon it and thus aggravate their disappointment when a precedent is in
fact set aside or modified.
Finally, in theory the problem is narrowed down in another aspect when
the authority of precedents is in general denied. To the extent that a precedent
-in contrast to previous case law or communis opinio-is innovative it will
constitute a retrospective application of the new rule in respect of the case
concerned, but that does not mean that the innovation need also apply to other
No. 2, 1973] PROSPECTIVE REVISION OF PRECEDENT

cases, either past (those involving dealings that have taken place previously)
or future. This assumption, however, is likely to hold more in theory than in
practice. Even when a precedent is not binding, it normally awakens in practice
some expectations that it will be followed in the future. That is especially so in
those legal systems where rules intended to assure uniformity of decision exist
and therefore a judgment cannot be said to be exhaustive of all its aspects
material to the actual litigants alone, and all other persons concerned
with its ratio decidendi are simply "overhearing" things not intended for them.
At all events, Israel law generally recognizes the authority of precedents
either as binding or as "guiding". Even if the provisions of sec. 3313 of the
Courts Law, 1957 are formally directed to the judges, the result is that the
precedents dealt with there come to be norms from which the individual
may reasonably derive future expectations. On the other hand there are no
precedents in Israel law from which one may not deviate.
It follows that in the Israel system the problem presents itself more fully
and more clearly than it does in other legal systems where one of these two
conditions are absent. It is true that the fact that every precedent is open to
change may moderate or lessen the legal value of the expectation resting upon
it. The private individual must know that any given precedent, even of the
Supreme Court, does not constitute a basis upon which he can rely as though
it were enacted law. Although both precedent and statute may change, a new
precedent which diverges from the old operates retroactively (within the
limits of res judicata)-- either on its own alone or alongside the old precedent,
as the case may be-whereas the amendment of a statute is normally not
retrospective. That, however, is no reason for not supporting the aspiration
that decisional innovations also should as far as possible be effected without
sacrificing any victims, without disappointing private expectations.

"Prospective Overruling"
3. American jurists who are protagonists of the new trend have repeated
again and again that it could not have been contemplated so long as there
prevailed the declaratory theory of which Blackstone was the best known and
most widely cited spokesman. They add, however, that if we abandon the
fiction that the judges are confined to finding the law and acknowledge that
frequently they need to create it, no difficulty arises in permitting "prospective
overruling"" 4 as it is commonly termed. English lawyers and others would
appear to agree in putting the question in this form.15

13 Sec. 33 reads as follows: a) A court shall be guided by a precedent established by a

higher court. b) A precedent established by the Supreme Court binds every Court
except the Supreme Court.
14 Cf., e.g., B.H. Levy, "Realist Jurisprudence and Prospective Overruling" (1960)
109 U.Pa.L.R. 1; Carpenter, "Court Decisions and Common Law" (1917) 17
Col. L.R. 593, 604; Note (1939) 24 Corn. L.R. 611, 612.
15 Cf. e.g., Diplock, loc. cit.; Dias, loc. cit.; A. et S. Tunc, Le droit des Etats-Unis
 ISRAEL LAW REVIEW [IsL.R. Vol. 8

Yet to speak of "prospective overruling" is like speaking of squaring the

circle. "Overruling"-that is, the adoption of a new ratio decidendi in place
of another that that was adopted in an earlier judgment-cannot be prospective
only; it must form the foundation of a judgment which necessarily concerns
certain past conduct. And if it is merely prospective-a "prophecy", in the
words of Cardozo, of what the courts will decide for the future-it can only
be prospective to a future overruling and not an actual one, according to what
was said above regarding the nature of the latter. Even when we entirely
reject the "declaratory theory", the difficulty inherent in the rule of precedent
remains."'
The supporters of this movement, or some of them, endeavour to distinguish
between the adjudicatory and the rule-making functions of the judge." But
this distinction cannot be established within the framework of the rule of
precedent, simply because, despite their declared aspiration, rule-making in
the theory of precedent is a by-product of adjudication. That is the difference
between law (or custom) and precedent: the former obtains even without
application in judical proceedings, the latter does not exist unless it operates
as the ratio decidendi of a judgment. The rule-making of the judge author
of the precedent is paradigmatic: what is authoritative is the example given
by his decision as such and not any possible formulation of the ratio of his
decision.
The distinction can only be drawn if judicial rule-making occurs outside
the framework of judicial decision and therefore of precedent. That was the
case, for instance, with the arrits de r~glement of the French parlements in
the past, which only bore a judicial form, and were normally not issued in the
course of judicial proceedings, and of the regulae praxis issued by the English
courts, as well as by the courts of Palestine during the Mandatory period.
Many more examples may be given of instances in which the courts have
fulfilled and continue to fulfil general normative tasks which are unconnected
with their judicial function or connected with it but always external thereto. 8
Kocourek in 1931 proposed that the Supreme Court should be allowed to
issue declarations of rules for future application even when such rules are not
embodied in the decision of the court in an actual case (and that such
declarations should be regarded as evidence for future cases of the existence
d'Amirique, Sources et Techniques (Paris, 1955) 220.
16 W. Bigiavi, Appunti sul dirittogiudiziario, (Urbino, 1933) (Reprint from (1933) VII
Studi Urbinati) 89 et passim.
17 See in particular Levy, op. cit., at p. 3 and Carpenter, op. cit. at p. 604, as well as the
observations of the Hon. George F. Campbell who was the first to formulate this new
trend in his address of 1917: see Rep. S. C. Bar Ass'n, 1917, p. 17, cited also in R.H.
Freeman, "The Protection Afforded Against the Retroactive Operation of Overruling
Decisions" (1918) 18 Col. L. R. 230, 248.
Is We have dealt with a number of these examples in Studies in Israel Law (Jerusalem,
1960) 116 et seq.
No. 2, 1973] PROSPECTIVE REVISION OF PRECEDENT 179

of reasonable reliance for the purpose of the application of these rules in

subsequent matters)."9 The declaration would only be made in connection with
a question raised on the facts presented to and found by the court. Thus, al-
though we still remain near the area of precedent, on the margins thereof, in
truth we are already outside it since the declaration is not embodied in an
actual decision.
In any case, Kocourek's proposal was merely de lege ferenda and in fact was
impliedly abandoned by him later on. 20 Among the supporters of prospective
overruling generally, and in American practice which is influenced by it, no
such revolutionary ideas are to be found and general declarations which are
21
not applied in a concrete case are regarded simply as obiter dicta.
Indeed, ordinarily the appellation obiter dicta is given to those rules which
are pronounced in a judgment but do not affect the case in hand on the facts
as found by the judge-rules which perhaps were not even discussed in the
argument of counsel-that is, an abstract hypothesis differing from that to
which regard is had in the decision itself. Here, on the other hand, the situation
is otherwise. If the court does not limit itself in its declaration that it intends
in the future to depart from the course which it has up to then pursued but
goes on to formulate at once the new rule which it is going to adopt in future
cases, it is certainly possible that the new rule was discussed in the instant
proceedings.22 Moreover, since the new rule has been considered as an alter-
native solution to the matter which has been determined, it cannot be said
to be unconnected with the concrete facts as found by the judges. Yet the new
rule is not the basis for any actual decision for which the judge assumes judicial
responsibility and it may therefore not be regarded as a precedent. If obiter
dicta is a negative concept (everything that does not form part of the ratio
decidendi), it is rightly so called.

4. Thus we find that the "prospective overruling" of American theory

and practice is not what it says it is. One of its two components is taken in a
special sense, quite different from the ordinary meaning of the word. Either
it is truly overruling-and then it is retrospective with regard to the case
affected by the new ratio decidendi (even if it is stated in the judgment that
this ratio shall not apply to other conduct that has already occurred)-or it is
simply prospective and then it is not truly overruling.

19 Kocourek, "Retrospective Decisions and Stare Decisis: a Proposal" (1931) 17

A.B.A.J. 180.
20 Kocourek and Koven, "Renovation of the Common Law through Stare Decisis"
(1935) 29 II.L.R. 971.
21 See as against this Lupoi, Valore dichiarativo della sentenza ed irretroattiviti del
mutamento giurisprudenziale nel diritto statunitense (estratto da Quaderni del "Foro
Italiano" Roma, 1969) 4-5, who deems such a declaration as true overruling to which
lower courts would be subject.
22 Cf. on this point Mishkin and Morris, On Law in Courts (1965) 308.
 ISRAEL LAW REVIEW [Is.L.R. Vol. 8

The first of these possibilities can be termed retroactivity of limited scope.

It will arise, as has been said, when the new rule is applied to the matter in
hand whilst the judgment contains a declaration that it shall not apply to any
matter or to a particular group of like matters that preceded the decision.2 "
The judges here may be said to have a mind to accord a sort of immunity to
certain matters against the new precedent so that they are not subject to it.
The value to be attached to such a declaration will not be discussed here.
It has already been observed that it is no more than obiter dictum, that is,
it does not achieve what is sought. In fact it happened that the judges who
themselves have made such a declaration have not abided by it when other
cases have come before them.
In any event, even apart from the possibility of the authors not observing
their declaration, a similar result-wholly or partially-occurs when, although
the new precedent is unaccompanied by any such restriction, judges sub-
sequently dealing with "old" cases of a similar kind are regarded as free not
to follow, and in fact do not follow, in its footsteps or do not do so when
in the case before them there was no reliance (proved or presumed) of the
parties upon the old rule ("selective retroactivity").
The alternative to retroactivity of limited scope has been called in the United
States "prophecy"; we would prefer to define it "a declaration of future
departure from precedent" or briefly "a disjunctive declaration". That occurs
when, in the course of their judgments according to old precedents, judges
state or make it understood that they will not continue along the old path.
Rather than a precise design, there is here a series of possibilities which has
been suggested and in part realized in the United States and Germany.
This technique is somewhat similar to that adopted by the Canonists with
regard to custom. When custom conflicts, not with Divine law but solely
with the law of the Church, its invalidation is not per modum declarationis,
by virtue of which it is considered void ab initio, but per modum dispositionis,
by virtue of which the particular custom, although acknowledged as having
been operative in the past, is declared to be without effect as regards the future:
24
Ipsam [consuetudinem] mandamus de cetero non servari.
The most moderate form of a "disjunctive declaration" is the expression
of doubt in a judgment whether the decision actually taken is rightly to be
followed in the future. The significance of this expression of doubt is in the
nature of a caveat to those who may thereafter wish to rely on the decision.

23 See e.g. in American case law what was said in Meyers v. Drozda 34 U.S.L. Week
2594 (Neb. Sup. Ct. April 22, 1966): "the new rule applies to all causes of action
arising after April 22, 1966, the filing date of this opinion. In respect to other causes
of action the new rule applies if, but only if, the nonprofit charitable hospital was
insured against liability on the claim of the patient, and then only to the extent of
the maximum applicable amount of its insurance coverage".
24 Trummer, Die Gewohnheit als kirchliche Rechtsqueile, Ein Beitrag zur Erkliirung
des Codex Juris Canonici (Wien, 1932) 56 et seq.; Bigiavi, op. cit., pp. 88-89.
No. 2, 1973] PROSPECTIVE REVISION OF PRECEDENT 181

Possibly also it constitutes an invitation to jurists to go into the problem for the
purpose of working out a different solution which it might be proper to adopt
in the future. 2 At a slightly higher level, we find the court (or one or other of
its judges), instead of expressing doubt, declaring that in its view the line
which the judgment in fact takes should be abandoned for the future; thus the
caveat is rendered clearer and more forceful, even though the new line which
the judges have a mind to adopt is not indicated or not precisely indicated. A
still higher level is the unambiguous declaration of the new direction which it is
henceforth intended to follow (something indeed which is not required when
the problem is such that only one solution presents itself with the rejection of a
given alternative). Similarly in England, the judges sometimes also adopt mea-
sures to express their view as to the future. W. Friedmann observes that in
Hadley Byrne 26 "the House of Lords could have been content to dismiss the
action on the ground that the defendants had excluded any legal responsibility
for their statement. It chose instead to enunciate [ ...] a future principle for res-
ponsibility [... ].The House of Lords overruled Candler v. Crane, Christmas
& Co. 27 with respect to future situations. [... ]. The decision [... ] operates
in effect as a 'prospective overruling' ",.2s Finally the declaration may take a
more manifestly normative form, when a particular date or period is laid
down (such as the end of the next session of the legislature) for the commence-
29
ment of the new rule.

5. There is another reason for preferring the expression "prospective

revision" to "prospective overruling". Overruling imports the abrogation of the
ratio decidendi of an earlier judgment. But the question before us is posed
even when the court adopting the new line is of such a rank that it may
not abrogate the old rule (a precedent of an equally ranking court) or when
it is doubtful whether it may do so (a precedent of its own-see infra sec-
tion 12). The question may arise, in these cases also, both as a question of
the most suitable technique to be adopted by the judge initiating the new line
and as a question of the choice by subsequent judges between the precedent
which it is to be assumed the parties relied upon and some other precedent

25 For Germany, see Grunsky, op. cit., p. 24 et seq. (English abridgement, p. 87

et seq.)
26 [1966] A.C. 465.
27 [1951] 2 K.B. 164.
28 W. Friedman, op. cit., p. 605.
29 In theory the determining date-the date when judgment was issued or some other
date mentioned therein--can relate to the entry of the summons. Roubier thus
understands the American decisions and he observes that in this way the new rule
is retroactive as regards cases occurring before the judgment, even if the summons
was entered thereafter: see Roubier, op. cit., p. 29. It is not the habit of American
courts, however, to relate to the entry of the summons but to the occurrence of
the case.
 ISRAEL LAW REVIEW [Is.L.R. Vol. 8

which emerged after they had acted as they did and was innovatory, although
the latter did not confine its application to future cases alone.
The second situation may appear to be not comprehended in the expression
"prospective revision", but it can be, if we understand by that not only a revision
which is expressly stated to be such, wholly or partially, but also one which can
be so regarded because of the use made of it afterwards.

6. The expression "prospective overruling" has met with other criticism.

Professor Mishkin takes the view that "[a] power of prospective limitation
cannot be confined to cases involving overruling of precedent ... .]. For the logic
of the position extends to any situation in which the new decision produces a
substantial change from what had previously been considered to be the law-
whether or not specific authority could be cited for that previous view". 30
From this point of view the term "prospective revision" should also be ruled
out, but it is not easy to find a short appellation that fits the subject. Mishkin's
"prospective limitation" is incomplete and if we are to understand it as
"prospective limitation of precedent", it does not appear apt to embrace
"prophecy" as well, since the latter is not a precedent, not even a limited
precedent. We should say "prospective innovations of case law".
Whether the cases mentioned by Mishkin should be taken into account is
another question. Although cases such as these have been adjudicated in
America, 31 it is not very reasonable to avoid giving retroactive effect to a
decision when the reliance of the litigants upon a different legal situation did
not rest upon any authoritative foundations. It may be said with Cardozo that
these are risks inherent in the game of life.3 2 In any event what is involved
here are marginal cases as opposed to the essential problem affecting the
revision of precedents.

Correcting Erroneous Precedent and Reforming Undesirable Precedent

7. We have not found that the advocates of prospective revision confine
their ideas to revision of precedent when not marred by gross error, as being
contra legem.
Cicero said: cujusvis hominis est errare; nullius, nisi insipientis, in errore
perseverare (Philippica XII, 2). Hence the well-known scholastic saying:
errare humanum est, perseverare autem diabolicum.
The question remains whether a judge can behave like the fool mentioned
by Cicero or like the devil mentioned by the Scholastics. What we mean is
whether a judge should declare: "This precedent is indeed erroneous-since
it overlooks the law or is founded on an imprecise reference to the law or the

30 Mishkin, "Foreword, The Supreme Court 1964 Term" (1965) 79 tHarv. L.R. 56, 65.
31 Cf. ibid.; Note (1947) 51 Va. L. R. 201, 250.
32 Cardozo, Nature of Judicial Process (Yale University Press, 1925) 148. Cf. Note
(1947) Va.L.R. 201, 250.
No. 2, 1973] PROSPECTIVE REVISION OF PRECEDENT 183

like. Nevertheless it is as well that it continue to apply to the matter now

before me (or alternatively not to this matter but to every other matter that
has already occurred but has not yet been legally decided) ".
It may perhaps be urged that it is right to establish whether in the particular
case before him, the judge is confronted by a precedent binding upon him,
being set by a superior court; and if that is so, then it may be urged that sec.
33 of the Courts Law, 1957 does not permit him to depart from it. The
argument is not, however, wholly tenable. Even if the language of sec. 33 is
not restrictive, it must be given a reasonable interpretation having regard
to the English theory of precedent which before the enactment of the Israeli
Law was held in principle to be operative in this country and which therefore
served as the background to that Law. So it should be deemed, for instance,
with regard to denying obiter dicta any authority, although such denial is not
explicit in the terms of the Law themselves. 33 So also with regard to a decision

33 Incidentally, I may be permitted a reply to Dr. Witkon ("Some Reflections on

Judicial Law-making" (1967) 2 Is. L. R. 475, 479) who writes that I "criticized the
court for expressing disapproval of Lamm J.'s refusal in the District Court to follow
a previous decision of the Supreme Court which, in Professor Tedeschi's view, merely
contained an obiter dictum and was therefore not binding on the District Court". In
my note on the case in question (in (1964) 20 HaPraklit 99) I did not intend to
express such a view as being my own but to refer to the view of Witkon J. himself
which I cited verbatim: "The course which the judge took was not correct even on
the assumption that the question did not arise in the first case except by way of an
example with which the judge sought to buttress his opinion". See Israel Perma-
nent Investment Co. v. Silver (1963) 17 P.D. 1655, 1660. Dr. Witkon adds
the following in his aforementioned article: "As regards obiter dicta, I would
suggest that they are of two different kinds, those which are gratuitously thrown in
and have, at best, persuasive influence, and those which are stated as a necessary
corrolary [scil., corollary] to the ratio decidendi of the case. Disregard of the latter
kind of obiter dictum is tantamount to a denial of the precedent itself". One may
observe as to this distinction between two kinds of obiter dicta, of which there is no
suggestion in the judgment, that what is a necessary consequence of the ratio, whether
or not stated in the judgment, must in logic be considered as belonging to the ratio
itself. Against this conclusion one may cite from English law the well-known remarks
of Lord Halsbury: "I entirely deny that it [scil., a case] can be quoted for a pro-
position that may seem to flow logically from it" (Quinn v. Leath [1901] A.C. 495,
506)-provided we do not understand these remarks as Cross does in his Precedent
in English Law (2nd ed., 1968) 189 et seq. In any case, according to the first
solution (the consequence of the ratio regarded as part of the ratio itself) one cannot
raise the question which Dr. Witkon seeks to do. And according to the second
solution, the conclusion will be that the corollary is not binding. The fact of the
matter is that either the corollary is binding as ratio decidendi or it is not binding at
all. Why therefore term the corollary expressed in the decision-as Dr. Witkon
does--obiter dictum rather than an interpretation--correct on his assumption-of
the ratio decidendi or of some aspect thereof? And if what was involved in the
above-mentioned judgment was a necessary corollary of the ratio decidendi, why did
 ISRAEL LAW REVIEW [Is.L.R. Vol, 8

per incuriam in the instances mentioned above. Such a precedent has never
been considered binding in English law, 34 and a fortiori it has no authority
under Israel law, since in Israel the entire authority of precedent derives from
clear and express statutory dispensation, and it cannot be imagined that the
legislature thought to attribute to the judges the power of waiving its own
laws.
At all events, our conclusion is still more certain where it is not a matter
of an inferior court having to decide whether it must follow an erroneous
precedent of a superior court. It is inconceivable then that the court, in order
to honour the expectations based upon it, would decide-even if only for the
time being-according to the precedent erroneous in the above sense.
Yet, Professor Grunsky has expressed a contrary view in regard to West
German law, not indeed in respect of the specific case of a judgment per
incuriam but without expressly excluding that instance from his general state-
ment in favour of the operation of an incorrect precedent. He adverts to the
criticism that may levelled against his view ("The court [... ] could not be
compelled knowingly to pass a judgment which is considered wrong") but he
counters: "This objection can be invalidated first of all by pointing out the cor-
responding dilemma of the legislator. If the latter wishes to create a new law
because the law as it exists is no longer satisfactory to him, he is never-
theless prevented by the principle of constitutionalism from subjecting the
already existing facts of a case to the new regulations. Then it would no
longer be inconcievable that this also applied to the judge. Above all, however,
the question as to whether the decision in an individual case is "right" or
"wrong" cannot be answered without taking current practice into considera-
tion. The "intrinsically right" solution can be unjust, and therefore wrong,
if it comes as a surprise to the parties concerned and thus could not be
included in their calculation from the outset".3 5 (In Grunsky's reasoning, we
must replace "principle of constitutionalism" by "the normal practice of the
legislator regarding the retrospective operation of a law" in order to adapt

Witkon J. say that "the fidelity required of a judge to a rule decided by a superior
court (sec. 33 of the Courts Law, 1957 [supra n. 13]) is not a formal matter. Its
source lies in public order and the courtesy which one court expects of another
as well as in the will to avoid barren deliberations", as if sec. 33 sees precedent even
beyond the ratio decidendi?
34 Even Reem v. Minister of Finance (1954) 8 P.D. 494, which dealt with the question
of "self-deference" before the enactment of the Courts Law, 1957, excluded a
precedent per incuriam therefrom-but the question was not raised whether in the
opinion of the judges such erroneous precedents could bind inferior courts.
35 Grunsky, op cit., p. 10 (English abridgement, p. 78). Cf. C.S. Rogers, "Perspective
on Prospective Overruling" (Winter, 1968) 36 U.M.K.C.L. Rev., 35, 73:
"[...] it is more just for the courts to correct their own errors, while not retroactively
penalizing those who had relied upon the erroneous decision, than it is either to
leave the error uncorrected or to apply the overruling decisions retroactively [...]"
No. 2, 1973] PROSPECTIVE REVISION OF PRECEDENT 185

it to Israel law or any other legal system which possesses no constitutional

restrictions like the West German regarding the retroactivity of law).
Clearly the analogy does not hold. There is no similarity between the
freedom of the legislator (which is complete in the absence of any constitu-
tional restraint as mentioned above) and the subordination of the judge to the
law. In point of law, the legislator does not amend an error when he effects the
reform of an unjust or undesirable law, in contrast to a judge when he corrects
an error into which a judgment, given per incuriam and contra legem, may
have fallen. There is no similarity in the public expectation and its legitimacy
between these two instances. Where the legislator amends a statute, it is proper
to have regard to legitimate expectations based upon the rule repealed, be the
reason for repeal what it may. But when the law says "white" and the pre-
cedent "black" it would be arbitrary and anti-legal to assume that "black"
alone was in the public mind or at least was more in its mind or so understood
than the "white" of the law. If we had to assume that the citizen is incapable
of understanding the laws, he would also be incapable of understanding the
precedents (moreover, the latter are in a number of respects more difficult
to interpret than the law); and the entire theory of prospective revision would
be vacuous. It may also be assumed that the jurists will make it easier for the
public to understand the law and will be watchful in pointing out any
inconsistency between it and per incuriam judgments.
Our conclusion is that the correcting of a precedent contra legem must be
retroactive. In this manner alone is the hierarchy of the sources of law main-
tained and an attitude of respect for the law ensured.

8. It is clear that the instances with which we have dealt do not exhaust
all the circumstances in which a revision of precedent arises. The above-
mentioned instances (of a precedent suffering from gross error), even if not
very infrequent, are exceptional. At the other end of the scale, an old precedent
may have been laid down when a lacuna existed in the legal system and thus
may have led to the creation of a rule in the absence of any relevant legal
regulation. If another judge should subsequently depart from the precedent,
that does not mean that he does so because he considers it to be contrary
to the ruling principles of the legal system but more perhaps because he thinks
another ordering of the matter is more just and more desirable or expedient,
whether that appears to him to have been the situation from the very outset
or whether new social conditions have brought that about. Although in the
past many have thought that every legal system is free of lacunae and provides
a single proper solution for every question that may arise, this view has been
abandoned by the majority, but this is not the occasion to dwell upon that
doctrine and its fictitious nature. In instances such as that last illustrated-
the divergence of a new precedent from one which filled an existing gap in the
legal system-it is not a matter of rectifying an error that has occurred in an
earlier precedent in view of the state of the law but of reforming an undesirable
 ISRAEL LAW REVIEW [Is.L.R. Vol. 8

regulation. Clearly no reasons exist here which call for retroactivity in the
other instance.
It should also be noted that on the last assumption a revision looking to the
future only would not be open to the objection raised against prospective
revision in general, that is to say, that the introduction of this practice may
encourage the courts to "legislate" and so avoid "the often unpleasant con-
sequences of retroactivity",. 6 Since, on the assumption we have posited, a
lacuna in the legislative rules existed, there is no reason for setting up obstacles
to the normative activity of the courts.
A precedent concerning a lacuna may be compared with a precedent that
emerges when a legislative rule is vague, insufficient or ambiguous. Here also
the view has been, and still is, taken that in every system all solutions but one
are wrong, so that no distinction is to be drawn between this instance and the
previous one of the precedent made per incuriam, contra legem. Nevertheless,
if the legal system does not demand such a fiction, the foregoing argument
can be dismissed as being artificial. The existence of legislative rules because
of their vagueness cannot go so far as to admit of a single solution appropriate
for every problem-even if the honest interpreter must regard these rules as
disqualifying certain solutions.
As for statutory interpretation pure and simple, 7 where a judge does not
follow some precedent because he prefers another interpretation of the law,
we must for our present purpose ascertain in which sense he regards his own
interpretation as preferable. If he considers the old precedent to be negatived
by the law, then the situation is similar to that of a precedent per incuriam,
on which we have already dwelt. If, on the contrary, the interpretation given
in the old precedent seems to the judge a possible one-although another is
regarded by him to be more desirable-we have a situation very close to the
other field, i.e. or reform (and not of amending a mistake). Here the work
of the judge is objectively similar to that of a legislator changing the earlier
law. The principle of the judge's subjection to the law does not require retro-
activity, if we must understand by law that which the law expresses and not
that which one may wish to attribute to it.
On the other hand, in this instance there are reasons which generally counter
the retrospective operation of enacted law. And these reasons indeed are
perhaps of greater weight here, since reform of the law is obviously more

36 Cf., e.g., Note (1961) 71 Yale L.J. 907, 925, 926, 928.
3 It is to be noted that American case law, even when it normally followed the path
of retroactivity, recognized an exception with regard to the interpretation of statutory
law relating to contract. It was thought that the construction becomes as much a
part of the statute as the text itself, and a change of decision is to all intents and
purposes the same in its effect on contracts as an amendment of the law by means
of a legislative enactment. See, e.g., von Moschzisker, "Stare Decisis in Courts of
Last Resort" (1924) 37 Harv. L. R. 409, 422-24; C.M.D., op .cit., 212.
No. 2, 1973] PROSPECTIVE REVISION OF PRECEDENT 187

expressive of the democratic process and often is largely heralded by public

debate and therefore less likely to take the public by surprise than changes in
case law.
That does not mean that every reform of an undesirable precedent (as
distinct from the amendment of a mistaken precedent) must actually be
prospective only. The legislator also does not always effect a reform for the future
alone. One must distinguish between different matters, between different
factual situations, between different kinds of reform, and in this light certain
expectations based on the previous legal situation may or may not be regarded
as justified; and even when the expectation is legitimate, other considerations
may well enter into the picture as a decisive counterbalance. When a reform
effected by the judiciary is involved it is possible to take the concrete circum-
stances into account and adapt the proper process to them, in much larger
measures than with reform by a legislator.
Apart from all the foregoing, and whatever the desirable balance of oppor-
tunities, we may not ignore one important restriction that flows from the
limited power of the judges under the given system-in our case the Israel
system.

The Power of the Courts

9. A question different from the previous one (when will the denial of
retroactivity adversely affect the principle of the judiciary's subjection to the
law and when will it not) is the question whether, at least in Israel law, the
judges are empowered to adopt the techniques of prospective revision as
suggested by American (and German) lawyers and as employed, in large part
by American law (and to some extent also by West German law). More
particularly, may the court declare "a break with the past in anticipation of
the future" in its various forms or the non-application of the new rule to "old"
cases? Further, may a "disjunctive declaration" in its most positive form
attain to "self-shackling" by the court? In any event, can it alter the legal
position deriving from precedents which precede it in respect of inferior
courts? And with regard to the non-applicability of the new rule to old
cases, can the declaration release the judges from the authority of the new
precedent so far as these old cases are concerned? Or can it possibly become
a prohibition on inferior judges to decide according to the new precedent?
In America, only some aspects of these questions have been discussed, i.e.,
those associated with the Constitution, which are not of interest here. In
general terms, American lawyers do not greatly concern themselves with
these questions.
Cardozo, in dealing with "disjunctive declaration" which he views more
in a negative manner-a departure from an earlier trend-than the lay-
ing down of a new line-says "I am not persuaded altogether that com-
petence to proceed along these lines does not belong to the judges even
now without the aid of statute", but adds immediately: "If the competence
 ISRAEL LAW REVIEW [Is.L.R. Vol. 8
3
does not exist, it should be conferred by legislation". Kocourek initially
suggested statutory regulation of the matter 39 but subsequently took the view
that that was unnecessary for the following reasons: "It needs to be emphasized
that both the declaratory principle with its supplement, the retrospective rule
and, likewise, the stare decisis rule, were created by the courts. No court can
limit its future competence any more than a present legislature can limit the
competence of a future legislature. The same power that has made can also
unmake. The argument presented leads to the simple conclusion that [...] in
no case of justifiable reliance should an overruling decision disturb transac-
tions reasonably entered into on the faith of existing declarations to the law.
4
The courts already inherently have the power to accomplish this program". 0
As against this, Justice von Moschzisker criticizes the new trend and sees
"prophecy" as tantamount to "legislation". It is not, however, clear whether
for this reason he thinks that it (the prophecy) is forbidden to the courts as
exceeding the limits of their competence, since he simultaneously calls it
"legislation" and obiter dicta (two things which are prima facie contrary to
one another).41
Prof. Mishkin on his part deals with the decision in Molitor42 where the
judges preferred to apply a new rule (although they announced that it would
not apply to other "old" cases) with the declared purpose, inter alia, that it
should not remain merely obiter dictum. Mishkin observes that this concern
of the court excites irony since its announcement that the new rule should
not apply to other cases was itself obiter dictum (and also unreliable because
it was not followed in connection with Molitor itself nor in other instances) .43

10. The rules regulating precedent are enigmatic in their different aspects
in almost every legal system, both those which recognize in principle the
binding authority of precedent in a generally accepted form and those where
a hiatus exists between theory and practice in this regard. What is particularly
unclear is the "dynamic" in the order of things, the question whether from
the legal point of view there is the possibility of varying the rules which
regulate precedent, and in this case what is the extent of the changes which
are permitted and which are the organs competent to effect them; or whether
under the law all possibility of change is barred, at least change by the
courts themselves, so that if change does in fact occur it must be regarded
as a "revolution".

38 Cardozo, N.Y. State Bar Address (1932) N.Y.S.B.A. Report 263, 297.
39 Kocourek, in (1931) 17 A.B.A.J., cit.
40 Kocourek and Koven, op. cit., 971, 999.
41 von Moschzisker, op. cit.
42 Molitor v. Kaneland Community Unit School District 18 Ill. 2d 11, 163 N.E. 2d 89
(1959).
43 Mishkin and Morris, op. cit., p. 309 et seq. See also Mishkin (1965) 79 Harv. L.R.
56 et seq.; Note (1965) 51 Va. L. R. 201, 216-17 and the further references there.
No. 2, 1973] PROSPECTIVE REVISION OF PRECEDENT 189

It is only possible to assert with certainty that from the analytical point
of view the principle of the authority of precedent does not flow from
precedents themselves. As Salmond puts it, "you must possess authority
before you can confer it".44 The fact that historically it was the courts
which imposed the rule of precedent in the English common law system
does not involve going on to say that-from the dogmatic point of view
(namely, from the point of view of the legal system)-the power of the
courts themselves to change these rules is to be recognized; and even if
it be so, whether the competence rests in the generality of the judges as a
group (their position being revealed in long usage) or is decentralized and
each judge may, even by a single decision, provide for his own precedents,
or whether the power is altogether concentrated in the hands of some superior
court.
Thus, for instance, the question arises in English law whether the rule
according to which it holds itself bound by its own decisions, which the
Court of Appeal once adopted, derived its force from the view of the matter
taken by the Court itself or from the subsequent affirmation of the House of
Lords.45 The last paragraph of the latter's Practice Statement (Judicial
Precedent) of 19664G may possibly be understood as showing that the Lords
think that they have this power, but some have taken the view that to release
47
the Court of Appeal from its own precedents requires legislative intervention,
48
whilst some have held that the Court of Appeal may do so itself.
There is also the question of how to reconcile the 1966 Statement under
which the Lords are no longer bound by their own precedents with the view
previously held which found expression in the well-known remarks of Lord
49
Campbell in Beamish v. Beamish.

11. Whatever the situation in other legal systems, a number of matters

emerge clearly from Israel law under sec. 33 of the Courts Law. Here, the
principle does not exist that the force of precedent is, in the terminology of
Kelsen, a Grundnorm, as is suggested in other systems. Nor is it an outcome of
judicial practice-whether a regular practice or one characterized by de-
centralization, that is a practice attributing to individual courts or to one of
them alone the autonomy to prescribe regulations and to vary them, even by

44 Salmond, Jurisprudence (11th. ed.) 137. Cf. Cross, Precedent in English Law (1961)
246 et seq.
45 Ibid., p. 247.
46 "This announcement is not intended to affect the use of precedent elsewhere than
in this House".
47 See the Law Society's letter to the London Times of July 27, 1966.
48 Dias, loc. cit.; Goodhart, "The Abolition of Absolute Precedents in the House of
Lords" (1966) 82 L.Q.R. 441, 443.
49 (1861) 9 H.L. Cas. 274, 338-39.
 ISRAEL LAW REVIEW [Is.L.R. Vol. 8

means of a solitary decision, as indicated above. In Israel it is a normal

legislative rule made by the legislature and open to any alteration by it.
Prior to the Courts Law of 1957 the Supreme Court manifested a
certain tendency to regard precedent as a matter of its own autonomy.
The crop harvested was the judgment of the High Court of Justice in Reem v.
5
Minister of Finance " which purported to regulate the question of the Supreme
Court being bound by its own decisions. But it is because of this very back-
ground that the statutory regulation of the matter under sec. 33 acquires all its
value. The statutory provision is intended to negative not only the "self-shackl-
ing" of the Supreme Court but also autonomy of the courts in general as regards
precedent. The authority of precedent derives from the legislature and the
legislature alone.
Professor Yadin takes the view that a matter such as the question relating
to the "self-shackling" of the Supreme Court is not capable of being legislated
(just as certain questions are not considered to be justiciable)." In the present
context indeed an American court has held that a statute which restricts
overruling decisions to prospective effect constituted a legislative attempt to
curtail the power of the judiciary and was "an invasion of the powers and
authority of the judiciary and violating the doctrine of the separation of
powers". 52 We think on the contrary that all matters are capable of being
legislated (in our law, at least) and that all legislation presupposes and requires
that the judge be loyal to the law and therefore ready-here as in every other
matter-to yield to the view of the legislature.
In the light of these principles one must deal with the question of the
force to be attached to judicial pronouncements that purport to restrict the
authority of a given precedent (retroactivity of limited scope) or are directed
to bind for the future, the court making them by means of its own "prophecy",
as it were.
It will be urged vainly on behalf of the first kind of declaration that just
as, for instance, the Supreme Court can by its own precedent in the normal
manner bind courts inferior to it, it may also bind them in respect only of
certain instances (the "new" cases): the greater includes the lesser. In truth,
in Israel law the "deference" never proceeds from the court; it is the legislature
that binds, assuming the existence of a precedent.
The declaration of the Supreme Court prohibiting other courts from
applying a new rule to "old" cases, or releasing them from the force of the
new precedent in respect of such cases, does not only actually constitute
obiter dictum (as Mishkin says with reference to American law: supra section
9) but it would be dictum forbidden to the judge making it. 5
50 (1954) 8 P.D. 494.
51 U. Yadin, "Truth v. Stability" (1972) 28 HaPraklit 152, 154.
52 Davis v. G.M.A.C. 176 Neb. 865, 871, 127 N.W. 2d 907, 912 (1964). Rogers
(op. cit. supra n. 35 at p. 62) is critical of these considerations of the court.
53 This conclusion under current law is not to be regretted, and accordingly there
No. 2, 1973] PROSPECTIVE REVISION OF PRECEDENT 191

A similar conclusion suggests itself with regard to the "disjunctive declara-

tion" by the Supreme Court, if deemed as a release5 4 of the lower courts
from an old precedent or as a prohibition upon them-or upon itself-to
follow an old precedent in the future. As against this, a caveat that the public
should no longer rely upon a rule hitherto applied cannot be regarded as in
any way affecting the principles of our law. On the contrary, the use by the
Supreme Court of this method may encourage it to respect the law. At present
the Supreme Court does not tend to depart from its precedents, although sec.
33 of the Courts Law negatives self-shackling. One may assume that it would
be more prepared to change its case law, were there no room for fearing that
the expectations of the public would be disappointed.
Kocourek indeed thought that after making such a declaration a court will
regard itself morally bound to follow the path it has indicated and that it is
therefore possible to rely upon the declaration. 5 In fact American practice
has not always been so and cases have occurred where declarations of this
kind by the courts have not been abided by.5 6 In any event a declaration
importing the moral obligation of the Supreme Court--or any other court-

is no occasion for initiating a legislative innovation permitting "limited retroactivity".

This affects the principle of equality in discriminating among people who acted
before the judgment: the litigants in the particular case are discriminated (favourably
as "chance beneficiaries" and unfavourably as "victims" as the case may be) as
against all other potential litigants in connection with "old" cases. Those who favour
this technique regard the discrimination as the necessary price to be paid for being
able to make the desired change in the case law, since the alternative technique
("prophecy" or "disjunctive declaration") discourages the initiative of a litigant who
cannot hope to benefit from a change of trend brought about through himself.
Nevertheless this criticism is answered by the fact that (a) the institutional litigant
will always be interested in a change in case law as regards the future; (b) sometimes
a potential litigant may hope that the court will apply the new rule retroactively
for him by reason of the special circumstances; (c) many occasions present themselves
in which the court may in its judgments hint that a particular rule, affecting only
incidentally a question then before it, is proper to be changed in the future. See Note
(1961) 71 Yale L.J. 907, 945; Kocourek and Koven, op. cit., p. 945; Note (1947)
60 Harv. L.R. 437, 440. Cf. also Black J. in Williams case, 364 Mich. 111, N.W. 2d
1, 16 (1961).
54 See as against this the suggestion made by Dias, loc. cit., regarding English law,
that the court will declare: "let the present case be governed by the precedent to be
overruled for the last time [...] but let the precedent be deprived of effect for the
future". Cf. Aigler, "Law Reform by Rejection of Stare Decisis" (1964) 5 Ariz. L.R.
155, 157: "One may find interest in speculation as to what would be the effect if
[...] judges were to incorporate in their opinion a statement in substance: 'This
decision shall not constitute a precedent' ".
55 Kocourek and Koven, op. cit., p. 995.
56 Schaefer, "The Control of 'Sunburst': Techniques of Prospective Overruling" (1967)

22 Record of N.Y.C.B.A. 394, 402.

 ISRAEL LAW REVIEW [Is.L.R. Vol. 8

with regard to its future action is not in tune with the spirit of sec. 33 which
is opposed to self-shackling. It is inconceivable that an Israeli judge would
follow the practice of the Roman praetor who declared in advance in his
edictum in which cases judicium dabo; such a declaration bound him (ac-
cording to the lex Cornelia of 67 BCE) and restricted his powers, although
some scholars dispute this consequence, at least in the sense that in their
opinion the litigant had no remedy if the praetor did not abide by his edict.
Certain American writers assert that there is no real difference between
precedents and "prophecies", because in their opinion the substance of a
precedent is no greater than that of a "prophecy".5 " Whether or not that is
correct according to American law, it seems to us that under Israel law the
two sides of this presumed equation need changing so that they are not equal
to one another but vastly different.
On the one side, the authority of a precedent is not merely a moral authority
in our law but a precise legal authority of two levels according to sec. 33 of
the Courts Law. On the other side, the provisions of sec. 33 itself serve as an
argumentum a contrario for denying any authority to "prophecy" and for
prohibiting it from meaning "self-shackling" or for imposing any duty of
"deference" upon the courts inferior to the court making the declaration. For
this reason one cannot agree, so far as our law is concerned, with the view
denying that "prophecy" be regarded merely as an obiter dictum simply
because "anything in a court's opinion beyond the judgment order is legislative
to the extent to lay down a general rule",5 s if by that it is meant to attach
any authority to what is said in a judgment beyond the ratio decidendi.
Nevertheless, the negation of all authority from "disjunctive declaration"
is not a denial of its practical importance. Even without any obligation upon
a judge to render judgment in the future according to such a declaration or to
attach greater value to it than it warrants on an independent appraisal that
is persuasive for him at the time, it is important for the public to know
what is the present opinion of the judges with regard to their future judicial
activity; and it is also important that the judge who will adjudicate in the
future should then know that the public was already prepared for the
possibility of a change in precedent. As in other social, political and legal
questions, communication is a wise thing and productive of good and
harmonious relations.

57 Note (1947) 60 Harv. L. R. 437, 440: "a holding itself is but a prophecy"; R.H.
Freeman, "The Protection Afforded Against the Retroactive Operation of Overruling
Decisions" (1918) 18 Col. L. R. 230, 232: "the obligations imposed upon the courts
by the doctrine of stare decisis is a moral obligation only". Cf. Chamberlain, Stare
Decisis (1885) 19.
5s8 Schaefer, loc. cit.
No. 2, 1973] PROSPECTIVE REVISION OF PRECEDENT

Sell-overruling?
13. The situation in which for the present purpose an Israel District
Court finds itself is dependent inter alia upon an answer to the following
question: can a judgment of the Supreme Court overrule a previous precedent
of that court? The situation in a Magistrates' Court is similar in face of
different precedents of any particular District Court (besides those of the
Supreme Court).
This is one of the questions to which no answer is given in the laconic
wording of sec. 33. Prior to its enactment there does not appear to have existed
any particular local practice which would enable one to gather the intention
of the legislature.
The English background of the Israel theory of precedent is also not very
clear in this respect. On the one hand Salmond says "since overruling is the
act of a superior authority, a case is not overruled merely because there exists
some later opposing precedent of the same court or a court of co-ordinate
jurisdiction. In such circumstances a court is free to follow either precedent".5 9
Cross suggests another course. Although he admits "that no-one has even
suggested that a High Court judge of first instance can overrule, as opposed to
differ from, the decision of another High Court judge" and agrees that a court
which is "self-shackling" cannot impliedly overrule itself, nevertheless as
regards express overruling he thinks, contrary to Salmond, that certain judicial
observations may be cited which appear to admit such a possibility, for
instance those of Channel J. in Logsdon v. Trotter.'"
In the United States the ability of a court to overrule a previous precedent
of its own is recognized but the American rules relating to precedents would
not appear to serve as a basis for interpreting the Israel provisions on the
subject.
The question in Israel law can perhaps be sub-divided into a number of
secondary questions:
(a) Can the ratio decidendi adopted in a Further Hearing overrule the
different ratio decidendi embodied in the judgment which is the subject
matter of that Further Hearing?
(b) Can the decision in a Further Hearing which is contrary to the
ratio decidendi of a previous ordinary precedent of the Supreme Court in
other matters overrule such a precedent?
(c) Can an ordinary precedent of the Supreme Court overrule (at least
expressly) a previous precedent of its own; and similarly a District Court
precedent as against a previous precedent of that court?
The answer to the first of these questions seems to be in the affirmative.

59 Salmond, Jurisprudence (12th ed., 1966) 148.

60 [1900] 1 Q.B. 616, 623. For other examples, see Cross, Precedent, cit. (1961) 125
et seq. ((2nd ed., 1968) 123 et seq.).
 ISRAEL LAW REVIEW [Is.L.R. Vol. 8

In the whole theory of precedent, a decision which is not authoritative with

regard to the case in hand cannot be considered as authoritative as a
precedent. As against this, the answer to the second question is less certain.
On the one hand, in the institution of Further Hearing is manifest the
consideration of the Further Hearing decision as a precedent (witness the
fact that the initiation of a Further Hearing can lie with the Supreme Court
itself); and that may be a ground for preferring the decision over any prior
ordinary precedent. Yet, on the other hand, the very fact that the previous
case could have been brought to Further Hearing upon official initiative
but that was not done may perhaps be regarded as a reason for comparing
the two precedents and therefore to equate the second and third question.
It should be mentioned that sec. 33 speaks of "a precedent established"
and not of "the precedent established". Had the legislator said the second, that
would have been evidence in favour of "self overruling", since the legislator
himself would have directed that the rule taken into consideration is a single
rule and therefore by implication the one lastly established. This may lead
us to a negative conclusion with regard to the third question. Another reason
can be found in the fact that in our law the whole theory of precedent is
statutory. The legislator himself-and not the judge-determines when a
precedent is authoritative, as regards whom and on what level of authority.
The words in which the Supreme Court purports to abrogate an earlier
precedent of its own are not a precedent and are without authority, since
under the Law the other courts are only bound by precedents (of the Supreme
Court). Just as the judge cannot confer any precedental authority, so logic
requires that he should be unable to abrogate such authority. The legislator
himself impliedly provides when overruling is automatic by virtue of the
higher status of the judge who creates the new precedent as opposed to the
judge who created the earlier one.
On these lines-not contemplating self-overruling except within the context
of the first question and at most of the second-we think that District and
Magistrates' Courts are free to choose between various precedents of the
Supreme Court"' even if the last of them has purported to overrule its
predecessors. (This conclusion must of course be understood with two reserva-
tions, one which was postulated with regard to the first question above and
the other that in the meantime no new legislative rules have been introduced
which remove the foundations of some precedent or another). A similar
freedom exists for the Magistrates' Courts in respect of the various precedents
of the District Courts. But let us examine the questions in greater detail.
If a Supreme Court judgment makes a disjunctive declaration about the
61 As against this, the Ontario Supreme Court has held that although an inferior court
must follow the rules laid down by the Court of Appeal, where the latter itself has
deviated from its own rules the inferior court must adopt the most recent of such
inconsistent rules and leave it to the Court of Appeal to decide which rule is to be
preferred: Chliwniak v. Chliwniak (1972) 24 D.L.R. 3d 646.
No. 2,1973] PROSPECTIVE REVISION OF PRECEDENT

line which it took previously regarding a particular question, such a declaration

would not alter the obligation of another court to follow the old precedents.
One can indeed contemplate that after a "disjunctive declaration" the
Supreme Court will rectify accordingly every judgment of the District Courts
inspired by the old rule and touching a "new" case. After one or more
of such rectifications (and perhaps in anticipation that these will occur, even
if they have not in any concrete instance) one can also contemplate that the
other courts will deem it futile to continue to follow the old precedent of the
Supreme Court which it has already criticized and thus deprived of its moral
force, and accordingly they will in fact proceed in the new direction which
the Supreme Court has indicated although the latter has not yet adopted it
in practice in its judgments. 62 Nevertheless that would, in strict law, constitute
an infraction of sec. 33;63 and if such a practice should spread, it would have
to be regarded as a judicial "revolution".
Where the Supreme Court decides contrary to a past precedent and
declares that with regard to other "old" cases the old rule should still apply,
other courts ought not to have regard to the latter since it is contrary to the
law. If the Supreme Court is denied the capacity of abrogating its precedents
(apart from the situation in a Further Hearing with regard to the judgment
in question), the other courts would be at liberty to proceed along one or
other direction, since they would be presented with self-contradictory
authorities. This freedom of choice would also avail them if the above
restriction was not contained in a judgment of the Supreme Court; and they
might always be at liberty to prefer the first (previous) solution for "old"
cases (or those of such "old" cases in which it can be shown or implied that
the litigants placed reliance upon the old rule) and the second (new)
solution for "new" cases.
If the Supreme Court is deprived of the power to annul its previous
precedents, such freedom of choice will rest in the other courts even when,
after a disjunctive declaration is made in respect of the old rule for the
future, the Supreme Court has the opportunity to decide according to the
new rule in respect of a "new" case. The other courts would be permitted

62 With regard to the possibility that a court bound by the precedent of a superior court
will jump the gun, that is to say, will disregard that precedent, in the hope that the
superior court will diverge from it, see for the trend in America to tolerate such
practice Auerbach et al., The Legal Process (1961) 183. For the opposite trend
see the observations of the Chief Justice of Australia in Jacobs v. Utah Contruction
& Engineering Pty. Ltd. (1966) 40 A.L.J.R. 306, 308; Cross, "Recent Developments
in the Practice of Precedent-The Triumph of Common Sense" (1969) 43 Austr.
L.J. 3, 5.
63 By contrast, there would not occur an infraction of sec. 33 if the District Court
would say in its judgment: "We must decide according to the old rule; the losing
side in this case should appeal and the Supreme Court may vary this judgment in
accordance with the new rule which it has declared."
 ISRAEL LAW REVIEW [Is.L.R. Vol. 8

to act in one way or another and would do so according to whether a "new"

or "old" case is before them.
If, on the other hand, the Supreme Court is deemed to be free to annul
its precedents-and if the last judgment, given under the influence of the
new trend, constitutes a true annulment-then in strict law the other courts
would have to follow the new direction even with regard to "old" cases. The
Supreme Court which is never bound by its own precedents may always
amend such a decision by itself applying the old rule to an old case.
Similar conditions apply to the precedents of District Courts in relation
to the decisions of Magistrates' Courts, but subject to two observations. Even
if a District Court is regarded as being free to set aside its own precedents
and if in fact that happens when a new rule is adopted-whilst there exist
precedents of another District Court in line with the old rule-the Magistrates'
Courts would always be at liberty to choose between the two rules and might
therefore exercise this choice according to the circumstances, that is to say,
according to whether they have to decide an "old" or "new" case. One
always assumes that no authority of the Supreme Court is involved. Moreover,
the authority of District Courts precedents is only "guiding" and therefore
the Magistrates' Courts would always preserve some freedom with regard to
such precedents, in contrast to the situation created in the case of a Supreme
Court precedent, when every other court is denied freedom of choice.