Per Incuriam: Thoughts on Canadian Law
For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. … So that the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law.
— 1 Bl. Comm. 71
But the law does not consist in particular cases; but in general principles, which run through the cases, and govern the decision of them…
— Rust v. Cooper (1777), 2 Cowp. 629 at 632, per Lord Mansfield
Welcome to Per Incuriam, a blog which will feature periodic commentary on Canadian law, particularly critical analysis of judicial decisions.
The title of this Substack was inspired by the rule that operates as an exception to the doctrine of precedent, where an earlier decision was “demonstrably wrong” for having overlooked a juridical principle or applicable statute. Even under the strict modern approach to stare decisis, the per incuriam rule may be regarded as a striking concession to the classical view that the decided cases are merely evidence, or illustrative, of the law.
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Nothing on this website is to be construed as legal advice, and any views expressed are those of the authors only.
