Risk and Predictability in English Common Law

It is often said that the biggest challenge facing private law is that posed by the continual need to choose between certainty and justice. Certainty is a worthy goal, it is said, because everyone knows exactly where they stand and judicial decision-making can proceed from clearly-articulated statements of legal principle. On the other hand, the pursuit of certainty may not allow for sufficient differentiation between different circumstances. Justice may modify this problem, but only by introducing uncertainty. Such an account may be thought so familiar as hardly to be worth recounting. Yet this paper seeks to challenge this dichotomy by suggesting that it is the product of a very peculiar combination of perspectives. Philosophically, the dichotomy is problematic only to legal positivism and allied schools of thought. Even then, it presents difficulties only if viewed from a particular temporal perspective as well: that is, after the events in question have already taken place and have become known. It is argued that this combination of perspectives is singularly unhelpful. It fails to provide any sort of systematic explanation for a very large number of cases, preferring instead to dismiss them as 'policy decisions'. Such dismissal is not so much an explanation as an abdication of explanation. This paper suggests that, if we move from an ex post facto positivistic perspective to one that takes an ex ante approach which focuses on the predictability of risk, then not only does the certainty-justice dilemma cease to be problematic; it also provides a much more plausible and persuasive account of the case law