The Online Library of Liberty

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• Preface to the First Edition
• Preface to the Second Edition
• Introduction to the Second Edition
• Aim of Introduction
• (a): Legislative Opinion At the End of the Nineteenth Century
• (b): Course of Legislation From Beginning of Twentieth Century
• (c): the Main Current of Legislative Opinion From the Beginning of the Twentieth Century
• (d): Counter-currents and Cross-currents of Legislative Opinion From the Beginning of the Twentieth Century 2
• Conclusions
• Lectures On the Relation Between Law and Public Opinion In England
• Lecture I: The Relation Between Law and Public Opinion
• Lecture II: Characteristics of Law-making Opinion In England
• Lecture III: Democracy and Legislation
• Lecture IV: The Three Main Currents of Public Opinion
• Lecture V: The Period of Old Toryism Or Legislative Quiescence (1800-1830)
• Lecture VI: The Period of Benthamism Or Individualism 1
• Lecture VII: The Growth of Collectivism
• Lecture VIII: The Period of Collectivism
• Lecture IX: The Debt of Collectivism to Benthamism
• Lecture X: Counter-currents and Cross-currents of Legislative Opinion
• Lecture XI: Judicial Legislation
• Lecture XII: Relation Between Legislative Opinion and General Public Opinion
• Appendix
• Note I: The Right of Association
• Note II: The Ecclesiastical Commission
• Note III: University Tests
• Note IV: Judge-made Law
• A Selection of Works On Politics

NOTE IV

JUDGE-MADE LAW

[See pp. 361-363, ante; Pollock, Essays in Jurisprudence and Ethics, p. 237, and First Book of Jurisprudence (2nd ed.), Pt. ii. c. vi.]

A.

Origin of Judge-made Law

The existence of judge-made law,—that is, of laws or rules created by the Courts of a country in the course of deciding definite cases,—arises from the general acceptance in such country of two ideas.

The one is that a judge or a Court—the two expressions may be here treated as equivalent—when deciding any case must act, not as an arbitrator, but strictly as a judge; or that it is a judge’s business to determine not what may be fair as between A and X in a given case, but what, according to some definite principle of law, are the respective rights of A and X. Hence it follows that every Court in deciding a case must tacitly, or expressly, apply to it some definite principle which is often indeed so clearly known that no special mention need be made of it, but which may be difficult to discover; and when this is so the Court must lay down the rule which guides its decision.

The other idea is that a Court or a judge must follow precedents, by which expression is really meant that a Court having once decided a particular case on a given principle (such e.g. as that an employer is liable to make compensation for damage arising from the negligence of his servants in the course of their employment) must decide all really similar cases in accordance with the same principle, or, to put the same thing in other words, that a Court is bound, as the expression goes, by its own judgments.

One may add that from this very respect for precedents it logically follows that when the judgments of an inferior Court are on a matter of law set aside (i.e. are either reversed or overruled) by a superior Court, the inferior Court must henceforth follow the judgment of, i.e. the principle laid down by the superior Court, and that a final Court of Appeal, such as is in England the House of Lords, is bound by its own judgments, i.e. must apply the principle laid down by itself for the decision of a particular case to all similar cases, until and unless the principle itself is declared to be no longer law by the Legislature, i.e. in England by an Act of Parliament.

Now these two ideas,—namely, that Courts must act as judges, not as arbitrators, and that the duty of a Court is to follow precedents,—though to a limited extent admitted in all civilised countries, have obtained more complete acceptance in England than in any continental, and perhaps in any other existing, State. For English Courts, and it may be said the English Legislature, have now for a length of time accepted not only these two fundamental ideas, but all the consequences that follow from them; and the best way to understand the nature of these fundamental ideas, and the way in which they actually produce judicial legislation, is to examine one or two examples of the steps by which English Courts have even in recent times created rules which, as they really have the force of law and are made by the Courts, may rightly be termed judge-made law.

Not many years have passed since A brought an action against X and Y, directors of a company, for damage caused to him by a fraudulent misrepresentation published by them in a prospectus of the company. The statement published was false. X and Y, however, thought the statement to be true, but their belief in its truth was due to their own gross negligence in omitting to examine whether it was true or not. The following question of principle then called for decision: Could gross negligence be treated as equivalent to fraud? The uncertainty of the law may be seen in the disagreement of eminent judges. A judge of the Chancery Division held that negligence was not the same thing as fraud—that carelessness, in other words, was not mendacity (Peek v. Derry (1887), 37 Ch. D. 541). The Court of Appeal reversed his decision, and held that gross negligence was under the circumstances equivalent to fraud (ibid. at p. 563). But the House of Lords reversed the judgment of the Court of Appeal, and held with the Court of first instance that carelessness is not the same thing as deceit (Derry v. Peek (1889), 14 App. Cas. 337). And this principle, which the House of Lords could not itself depart from, became in 1889 part of the law of England, and was loyally and fully accepted by the very judges of the Court of Appeal who had held a different view of the law. It is, further, at this very moment a rule of English law, except in so far as it has been modified, as regards directors of companies, by the Directors’ Liability Act, 1890, 53 & 54 Vict. c. 64. This case is worth careful study. We here see every step in the formation of judge-made law. That X and Y had acted with blamable carelessness was clear; but a judge had nothing to do with this point: his duty was to determine whether on principle their negligence rendered them guilty of fraud. As a matter of fact, we must say that, where good judges differed, the question of principle was doubtful. The Court of first instance laid down one law, the Court of Appeal another, and the House of Lords, agreeing with the Court of first instance, at last established a rule to which every Court, including the House of Lords itself, was bound to adhere, i.e. which became the law of the land, and this law was finally modified by the only power which can change every law—namely, the Imperial Parliament.

Just about fifty years ago the Court of Queen’s Bench decided what was then assuredly a doubtful point, that where X induced N to break N’s contract with A, the latter had a right to recover damages from X (Lumley v. Gye (1853), 2 E. & B. 216). The validity of this rule, and certainly its extent, remained open to doubt. Some twenty-eight years later it was affirmed and somewhat extended by Bowen v. Hall (1881), 6 Q.B.D. (C.A.) 333. It has of recent years been distinctly affirmed both by the Court of Appeal (Temperton v. Russell [1893], 1 Q.B. (C.A.), 715), and by the House of Lords (Quinn v. Leathem [1901], A.C. 495).

Fifty years ago, again, it was doubtful whether, if X had entered into a contract with A, and before the time for performing the contract had arrived, informed A that he would not perform it, A had a right then and there to sue X for breach of contract (Hochster v. Delatour (1853), 2 E. & B. 678). Eminent judges were here again in some doubt. The law was in truth uncertain. But later decisions (Frost v. Knight (1872), L.R. 7 Ex. 111 (Ex. Ch.); Mersey Steel & Iron Co. v. Naylor (1884), 9 App. Cas. 434) have affirmed the principle of Hochester v. Delatour; the Courts or the judges have then in reality made it a law.

It would be difficult to find a better instance of judge-made law than the rule laid down by the House of Lords itself, that the House is bound by its own decisions (London Street Tramways Co. v. London County Council [1898], A.C. 375; R. v. Millis (1844), 10 Cl. & F. 534; Beamish v. Beamish (1861), 9 H.L.C. 274). Some competent critics, indeed, have argued that this rule or law has only of recent years been firmly established. If this view be correct (which may be doubtful) it only makes the establishment of the rule with which we are dealing all the more striking as an example of legislative authority exerted by the final Court of Appeal. The rule, however, is in any case one towards which the decisions of the House of Lords and the dicta of eminent lawyers have pointed. It is in strict conformity with the respect for precedent which is the parent of judge-made law. It is in any case now part of the law of the land, and therefore forms an impressive instance of a law indirectly though surely enacted by the final Court of Appeal. These illustrations of such judicial law-making may suffice. It would be easy to multiply them; they sufficiently, however, prove the conclusion on which it is here necessary to insist—that the legislative action of the judges is the necessary consequence of ideas which underlie our whole judicial system.

B.

Amount of Judge-made Law

It is hard to give to any person not versed in English law an adequate notion of the extent to which our law is the creation of the Courts (see pp. 361-363, ante). As already stated, by far the greater part of the law of contract—one might almost say the whole of the law of torts, all the rules or doctrines of equity, several outlying branches of the law,—such, for example, as the principles embraced under the head of the conflict of laws,—either originally were, or still are, to be deduced from judicial decisions or, what is in reality the same thing, from the doctrines of writers such as Coke, whose dicta are accepted by the Courts as law. Statutes themselves, though manifestly the work of Parliament, often receive more than half their meaning from judicial decisions. And this holds good not only of ancient, but sometimes also of modern Acts of Parliament.

It is at least a curious fact, that by an odd paradox our rules of procedure, which seem from their nature to belong naturally to the sphere of judicial legislation, derive their ultimate authority at the present day from the Judicature Acts. But here, as elsewhere, exceptio probat regulam. No doubt the authority of the Rules of Court is derived from the Judicature Acts, but Parliament has most wisely, under these Acts, given to the judges direct, though admittedly subordinate, legislative authority. The Rules of Court are framed by judges, though they require for their validity the tacit sanction of Parliament; and these Rules of Court are as truly laws as any part of the Judicature Acts under which they are made. They decide matters of great importance. If they deal only with procedure, it is absolutely impossible to handle procedure freely without immediately trenching upon substantive law. Where there is no remedy there is no right. To give a remedy is to confer a right. Thus the rules which determine the limits of the High Court’s jurisdiction do in truth often determine how far any person has a remedy against, e.g. a breaker of a contract or a wrong-doer who is not in England—i.e. they in reality, though not in form, determine the effective rights of A against X, who is not in England, in respect of a contract broken or a wrong committed by X.

It is a common notion with us, countenanced by the general expressions of French writers of authority, that judicial legislation is unknown to, and indeed cannot exist in countries such as France, where the law is reduced to the form of a Code (see Berthélemy, Droit Administratif, p. 12). But this idea, if accepted too absolutely, is misleading. True it is that in countries where precedent is of less weight than in England, where there are several independent Courts of Appeal, where there exists no one final Court of Appeal (in the sense in which we use that term), and where the Executive has a good deal to do with the interpretation of the law, the sphere of judicial legislation is less extensive than in England; but it is certainly not the case that in modern France, at any rate, you will find no judge-made law. Precedent (la jurisprudence) tells with French judges, and wherever precedent has weight there one will always find case-law, which, in the modern world, is almost necessarily judge-made law. We have already seen (see p. 472, ante) that the French combination law has been expounded and modified by the judges (see Pic, pp. 198-201) in much the same way as the combination law of England has been explained and modified by our Courts. Judicial decisions (la jurisprudence) have extended the property rights of a married woman under the Code (see Le Code Civil, 1804-1904; Livre du Centenaire, pp. 287-289). And generally, if we are to believe French authorities, reported judgments have in France told considerably upon the whole character of the Code (ibid. pp. 175-204). What is less obvious at first, but on investigation turns out even more certain, is that the whole of French droit administratif, which is gradually being transformed into a regular part of French law, is wholly or almost wholly based upon case law; it no more depends upon any law passed by the French Legislature than did equity in the time of Charles II. depend upon any Act of Parliament (see Dicey, Law of the Constitution, 7th ed., pp. 369, 370).

C.

Characteristics of Judge-made Law

(1) Judge-made law is real law, though made under the form of, and often described, by judges no less than by jurists, as the mere interpretation of law.

Whoever fairly considers how large are the masses of English law for which no other authority than judicial decisions or reported cases can be found, will easily acquiesce in the statement that law made by the judges is as truly law as are laws made by Parliament. In what sense, if at all, the function of the judges can be described as merely interpretation of the law is considered in a later part of this Note.

(2) Judge-made law is subject to certain limitations.

It cannot openly declare a new principle of law: it must always take the form of a deduction from some legal principle whereof the validity is admitted, or of the application or interpretation of some statutory enactment.

It cannot override statute law.

The Courts may, by a process of interpretation, indirectly limit or possibly extend the operation of a statute, but they cannot set a statute aside. Nor have they in England ever adopted the doctrine which exists, one is told, in Scotland, that a statute may become obsolete by disuse.

It cannot from its very nature override any established principle of judge-made law.

A superior Court may, of course, overrule any principle of law that derives its authority merely from the decisions of an inferior Court. Thus the House of Lords may, and occasionally has, set aside or treated as not being in reality law a rule which, though of considerable antiquity and long received as law, has not been confirmed by the sanction of the House itself; and the Court of Appeal is not bound to follow principles in favour of which nothing can be cited but judgments of the King’s Bench Division or of the older Courts of which the King’s Bench Division is the successor. But no Court—not even the House of Lords—will directly invalidate a rule sanctioned by that House.

Even this statement must be taken subject to some slight limitation. The House will occasionally limit the operation of a well-established legal rule either by subtle distinctions or by “refusing to carry a rule further,” as the expression goes. By this is really meant that the House, while recognising the validity of some well-recognised legal principle, and applying it to cases which indubitably fall within it, will not apply it to other cases which can be brought within it only by some process of logical argument. Nor is there anything in this course inconsistent with sound logic and good sense. It is a mere recognition of the undoubted fact that a sound principle may, even as expressed in authoritative judgments, cover cases to which it was never meant to apply, and which were not before the mind of the Court which enunciated the principle. When this is so, a Court of final appeal rightly gives effect to the real meaning rather than to the mere words of a rule of law. This, at any rate, is the way in which our Courts sometimes deal with rules resting upon judicial decisions. The freedom with which they interpret such rules is a virtue. What is to be regretted is that our Courts have felt themselves less at liberty, in modern times at least, with regard to the interpretation of statutes, and are apt to pay more attention to the words than to the spirit of an Act of Parliament.

(3) The incapacity of the Courts to change a rule on which they themselves have conferred the character of law leads to the important result that the legislative powers of the Courts, unlike in this to the authority of Parliament, become gradually in particular spheres exhausted.

Their capacity, for example, to carry out further reforms in regard to the property rights of women had early in the nineteenth century all but reached its final limit (see pp. 375-383, ante). Before 1870 it was exhausted. The field for innovation or reform was filled or blocked by rules which, whether created by statute or by judicial legislation, neither the Court of Chancery nor any other Court had the power to modify or change; and what happened in this particular instance must always happen whenever a given department of law has been made the subject of much legislation, whether parliamentary or judicial; the way towards change or reform has got blocked by laws which, under the English Constitution, can be changed or amended only by the sovereign authority of Parliament. From this fact it might be inferred that the sphere of judicial legislation must gradually become narrower and narrower, and judicial legislation itself come at last completely to an end. This conclusion contains this amount of truth, that no modern judges can mould the law anything like as freely as did their predecessors some centuries ago. No Lord Chief-Justice of to-day could occupy anything like the position of Coke, or carry out reforms such as were achieved or attempted by Lord Mansfield. There are whole departments of law which no longer afford a field for judicial legislation. But for all this the judicial authority of the Bench, though subject to restriction, is not likely to be reduced to nothing. The complexity of modern life, in the first place, produces new combinations of circumstances, which, in so far as they give rise to legal disputes, bring before our tribunals what are in reality new cases—that is, cases which must be determined either by applying to their solution some new principle, or, what more often happens, by the extension of some old principle which is found to be really applicable. The interpretation, in the second place, of statutes will always exercise the ingenuity of our judges. In either case there is room for the exercise of what is in truth judicial legislation.

(4) Judge-made law is apt to be hypothetical law.

A clear rule, supported by a judgment of the House of Lords, is in reality as much a law as any Act of Parliament, and this holds a fortiori true of a rule supported by many judgments both of the House of Lords and of other Courts. But there may well be rules established by the judgments, say, of the King’s Bench, of the old Court of Exchequer Chamber, or of the present Court of Appeal, which have been generally acquiesced in, but have never been brought before the House of Lords. This was till quite recently—to recur to an illustration already used—the state of things with regard to the rule that A had a right of action against X, who induced N to break his contract with A. Till a year or two ago it depended for its authority wholly upon a judgment of the Queen’s Bench, reinforced by a later decision of the Queen’s Bench Division. Was it good law or not? Not the most learned of lawyers could give an absolutely conclusive reply; no one could in reality say more than that the rule in question was hypothetical law. And a good deal of such hypothetical law is, it should be observed, always in existence, and may continue to exist for a length of time. For many years it was a matter of real uncertainty whether the Divorce Court had jurisdiction to divorce persons permanently resident though not domiciled in England. A decision of the Court of Appeal showed that such jurisdiction might exist (Niboyet v. Niboyet (1878), 4 P.D. (C.A.) 1). But many of the best lawyers entertained grave doubts whether the decision of the Court of Appeal was good law. It was in truth hypothetical law. The doubts of critics have at last been justified. The decision of the Court of Appeal in Niboyet v. Niboyet has been virtually overruled, and we now know with something like certainty that domicil must be taken to be in England the basis of divorce jurisdiction. This tendency of judicial legislation to foster the existence of hypothetical law is its worst defect. The public, it may be suggested, would gain a good deal if a power were conferred upon the House of Lords of calling up for the House’s decision (say on the motion of the Attorney-General, and, of course, at the public expense) cases determined by the Court of Appeal, and involving the determination of an important principle of law which had never come before the House of Lords.

D.

Objections to or Criticisms on the theory of Judge-made Law

The view of judge-made law here propounded is exposed to three different objections or criticisms.

First objection.—There is no such thing, it is sometimes objected as judge-made law; Courts or judges are never the creators of law; they always act, as long at any rate as they discharge their proper duty, as interpreters of the law and not as legislators; the law which they interpret may be statute law, or it may be a rule of law created by custom, but in any case it exists and is known to the people of a given country before the judges undertake to interpret it. The validity, it is added, of this objection is proved by the fact that Courts invariably profess to explain a law which already exists and needs only explanation.

Now, in replying to this objection, which may be put in various forms, it is well to make one or two admissions. If the critic means only that the very elastic term “interpretation” may be so extended as to cover everything which is done by an English judge when performing his judicial duty, it may be admitted that this is so. A mere dispute about the right use of a word which easily admits of almost indefinite extension is an idle piece of logomachy which it is wisdom to avoid. If, further, it be meant that in many cases a judge or a Court does act merely as an explainer of the law, this again may easily be conceded. Nor can it be disputed that the explanation of a rule may, especially where the rule is followed as a precedent, so easily glide into the extension or the laying down of the rule, or in effect into legislation, that the line which divides the one from the other can often not be distinctly drawn. And to these admissions may be added the further concession, that in modern times, when an immense number of fixed rules established either by Parliament or by the Courts are in existence, it rarely happens that a judge, consciously at any rate, does more than expound what one may well call established legal principles. But all these concessions do not get rid of the fact that a great deal of law has been, and a good deal still is from time to time, the result of, and in effect created by, the action of the Courts. The very rules which modern judges only interpret or explain can in many cases be drawn only from the judgments of their predecessors. A judge who applies to a particular case the principle that a promise made without any consideration, or in popular language a promise for which the promisor gets no advantage, is void, certainly may do no more than apply or interpret a well-known legal principle. But the principle itself does not originate in any statute. The long and intricate process by which it was thought out and established affords a singular instance of judicial legislation. When a judge applies the words of a statute to a particular case he may well do no more than follow a rule which he in no way creates, but, as the history of all our older statutes and of many of our modern statutes shows, judges who interpret statutes and whose interpretation become precedents in reality legislate. To say that all interpretation is legislation is, no doubt, to maintain a paradox. But this paradox comes nearer the truth than the contention that judicial law-making is always in reality interpretation. Nor does our objector gain anything by insisting that judge-made law often is what it assuredly is not always, the mere recognition or interpretation of custom. The same thing may be said of many statutes. The motives which induce either parliaments or judges to treat certain customs as laws do not invalidate the fact that when parliaments or judges give effect to a custom they legislate. Here again it is well to avoid arguments turning mainly upon the meaning of words. Whether and in what sense custom is to be considered the source of law, or whether it be or be not true that judge-made law or judicial legislation are expressions open to criticism, are questions which a reasonable man may well treat with some indifference. If an objector admits, what with regard to English law he can hardly dispute, that great portions of it are recorded only in and derive their authority from the judgments of the Courts, the objection that there is no such thing as judge-made law has received a substantial answer.

Second objection.—Judges, it has sometimes been maintained, have undoubtedly in fact made law, but have accomplished their end by the fraudulent pretence that they were interpreting a law which, without any moral claim to do so, they were in fact creating.

This contention, that laws are the result of judicial frauds is nearly akin to the delusion that religions are the growth of priestly imposture. Both of these notions are ideas belonging to an obsolete mode of thought. In neither case do they deserve careful confutation. The notion that judges pretended to expound the laws which they really made is based upon ignorance of the fact that fiction is not fraud, and that legal fictions are the natural product of certain social and intellectual conditions. Nor, be it added, has the progress of civilisation as yet enabled us to get rid entirely of something very like legal fictions, or at any rate of the tendency in some departments of law to confuse facts with fictions. This habit is still very traceable in the field of constitutional law. It is convenient—perhaps necessary—to consider the will of the majority as the will of the whole nation. But it is perfectly clear that this identification, whatever its convenience or its necessity, is a political fiction. What, again, are we to say about the powers ascribed by English constitutionalists to the King? In some instances, no doubt, the fiction is a mere figure of speech. Few, one trusts, are the men who seriously believe that the millions raised by taxes are granted to or spent by the King. Most persons probably know that the King himself takes no share in the administration of justice. But what part does he or can he take in the appointment of ministers, or in moulding the policy of the country? The wisest constitutionalist is the man who on such matters keeps a judicious silence. One may conjecture that those who minimise and those who “maximise” (if we may use a term invented, like minimise, by Bentham) the action of the Crown are in equal danger of error. Fiction and fact are here probably blended. The artificial ascription of almost unlimited power to the King is a means of concealing the fact that powers which are not unlimited are indefinite.

Third objection.—The Courts, it is sometimes said and still more often thought, though they certainly do legislate, never ought to legislate at all.

This is an idea constantly put forward by persons who, rightly or wrongly, object to some principle established by judicial decisions. Such critics urge not only that the rule which they condemn is a bad one, on which point they may perfectly well be in the right, but also that the rule, whether wise or unwise, whether right or wrong, ought never to have been laid down at all by the Courts, and this on the ground that it is the business of the Courts to decide cases and not to make laws.

The answer to this line of criticism is that the person who pursues it has in no case a right to blame the judges. His argument may mean that the whole English judicial system, with its respect for precedent, is a bad one. So be it. But, even if this be so, English judges cannot be blamed for acting in accordance with a system which they are appointed to administer. Our objector’s argument, on the other hand, may mean that, the English system being what it is, judges can, if they choose to do so, always avoid judicial legislation. But, if this be the critic’s meaning, he distinctly ascribes to judges a liberty of choice which they do not in fact possess. To simplify the matter, let us confine our attention to the House of Lords. A case comes before the House which can only be decided by either affirming or denying the application or validity of some principle. But either affirmation or denial will equally establish a precedent, or in other words, a legally binding rule or law. How under this state of things can the House by any possibility avoid judicial legislation? Return to the case already noted of Derry v. Peek. The question to be determined was, whether gross negligence when unaccompanied by deceit could be treated as equivalent to fraud. There was much to be said in favour of an affirmative answer, and the Court of Appeal said it with great force. There was much also to be said in favour of a negative answer, and this, too, was said by Lord Herschell and other eminent lawyers with the greatest vigour. The House of Lords did, as a matter of fact, give a negative reply, and laid down the law that carelessness was a different thing from lying. It is not necessary to decide or to intimate which of two possible rules was the more logical. All that need here be contended is that the House was compelled to lay down one rule or the other, and that whichever rule was laid down would in effect become law. In this case, as in a thousand others, the House, though acting as a Court, was compelled to legislate; and what is true of the House of Lords applies in a measure to every Court throughout the land. A critic who objects to the rule, or in reality the law established by a judgment of the House of Lords may maintain that the House committed an error. He may maintain that the rule which the Lords established was not a logical deduction from the principles they intended to follow, or that the rule, though logical, was inexpedient, or, if he pleases, that the rule was both illogical and inexpedient. But if he has mastered the nature of judge-made law he will hardly commit himself to the contention that the House of Lords was to blame simply because its judgment established a fixed rule of law. This was a result over which the House had no control, and for which, therefore, it deserved neither praise nor blame.

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