(k) It is better to consult a lawyer too soon rather than too late. In consulting a lawyer on the preparation of a draft it must be remembered that his work can be no better than the instructions he receives.
(l) It may be expensive for the employer or contractor if a decision of the engineer on the basis of which the works were completed is eventually overruled. The engineer—unlike the courts—may tend to read the contract on the basis of what it should say or was meant to say, rather than what it literally does say, so that legal advice may be particularly necessary if the draftsman’s efforts have failed and a dispute does arise on a question of interpretation.
The doctrine of precedent. Many of the statements about the law in this book are supported by references to published law reports of court decisions. It should be explained that these cases are not simply examples of the application of the law by the courts, but are themselves the law. A judge is bound by all decisions on matters of principle made in similar cases by courts of higher (or in some cases equal) standing, whether he agrees with them or not—e.g. a House of Lords（英议会的）上议院 decision binds all courts except the House itself unless altered by legislation, a High Court（高等法院） decision binds a County Court（地方法院） judge but not of course the Court of Appeal（上诉法院） or House of Lords.
It is very natural for a judge to refer to previous decisions for guidance and to follow a decision which he considers right. The pecularity of the doctrine of precedent of the English common law, and legal systems based on it, is that it binds a judge to follow a previous decision whether he likes it or not and even if he thinks it is based on defective reasoning. However, only those conclusions of the judge in the previous case which were necessary for the purpose of deciding that case (the ratio decidendi—literally the reason for or ground of a decision) are binding in this way, and not his conclusions on other questions discussed in his judgment (obiter dicta—remarks by the way).
Commonwealth and U.S.A. decisions are, of course, only persuasive, not binding, authority in the English courts. As with the obiter dicta of judges in English cases, whether they are followed or not will depend on the standing and reputation of the particular judge and the cogency of his reasoning.
The purpose of the doctrine of precedent is to make the law certain—so that contracts may be made and disputes settled knowing what the law is on the basis of past decisions which the courts will follow. In practice the law is about as certain as are the principles of civil engineering.
Engineering law particularly is made up largely of case law of this kind rather than legislation, but the decisions of arbitrators are not of course binding in other cases or even made public, so that the law has not developed greatly since arbitration became fashionable, and this accounts for the age of many of the cases referred to in the following chapters. However, there are signs of the courts obtaining a more active role, with an increasing number of court decisions—for good or ill.
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