Judge-made law. When Lord Denning came up with the neighbour principle, had he developed a new law or had he only recognized and enforced a law that had already existed, but which his predecessors had failed to discover?

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"It is the judges that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, then beat him for it. And this is the way the judges make law for you and me."

When Lord Denning came up with the neighbour principle, had he developed a new law or had he only recognized and enforced a law that had already existed, but which his predecessors had failed to discover? A quick look at the question and the answer would most likely be the first for most people. Indeed, where there are gaps unoccupied by Parliamentary statutes and its provisions or by any settled rule of case-law, it is common sense to assume that judges would use their discretion to formulate new principles that would afterwards be embodied in the Law. This principle only ceases to be part of the body if it is overruled by a later case or overturned by a higher court; or if the Parliament enacts a statute which acts retrospectively to overwrite that principle or prospectively to ensure that a later case be decided otherwise. In fact, there had been countless instances in which judges have made laws, so much so that it is quite impossible to disprove or deny their legislative capacity. However, this had not always been the case. Before the Practice Statement 1966 was issued, the orthodox attitude was as such: “Judges ought to remember that their office is... to interpret law, and not to make law, or give law.” The English judges were very averse to admit to their law-making capacity unlike their American counterparts. The role of the courts then, was “to administer the law; not to make new law if there are cases not provided for.” However, much has changed over the past century in the approach of the judiciary towards law-making. Before we go into the details, it is important to consider whence the tremendous body of legal rules which we term the Common Law originate.

When one inquires behind the source of a new legal rule applied by a judge in a certain case, the underlying question is this: from where does he get this newly proclaimed law? 1) Had he made it up? Or 2) had he only discovered it? To aid our understanding of the two very distinct theories, Zechariah Chafee gives a pictorial description: Judge-made law, he described, “[I]s like a skyscraper under construction and never finished. The judges gradually put up some beams as they wish; the legislators put up other beams as they wish. All law is built by human beings including judges.” Law in the latter sense, however, “is like a great partially explored continent which is always there and which the judges are gradually mapping out by their decisions. A particular judge’s personality does play a part, but it does not affect the real rules of the law. It merely influences the accuracy with which his written opinion describes this law outside himself, just as one mapmaker may explore farther than another or record what he sees with greater skill. For example, a judge may confuse two legal doctrines that are really distinct, just as early voyages along the New England Coast confused the summits of Mount Desert with the Camden Hills. But these mountains remained many miles apart, whatever the maps said, and the law that exists somewhere or other stays the same whatever judges do.” That said, we will tackle the second theory first.

The historical development of jurisprudence in England has at one time been fed by German jurists with the idea that “there is a completeness in a legal system which enables the jurist to discover legal principles and to formulate rules even when there is no positive basis for them in statutes or precedents... there are no gaps in a rational system of law...; law, even if not expressed, is latent in gremio judicum and will be formulated by the Courts called upon to produce it.” This view has been adopted by jurists like Blackstone, Lord Coke and Ronald Dworkin. Blackstone suggested that judges are depositories of the law and are obliged to decide in accordance to “the law of the land”, which comprises of customs of our Anglo-Saxon or Norman progenitors. As such, the Common Law is not a product of judicial decisions but a manifestation of these customs. Judicial decisions, he claimed, were “the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law”. A judge is “sworn to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound on the old one...” which he discovers, “from experience and study;... and from being long personally accustomed to the judicial decisions of [his] predecessors.” Dworkin explained that when deciding on cases, judges were not allowed unmitigated discretion but were bound by “ever-valid principles”. As such, there was no such thing as a bad law; only a wrong law.

On the other hand, John Austin, a dominant figure in the late nineteenth century had ridiculed Blackstone’s declaratory theory as: “childish fiction employed by our judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges.”  Austin conceded that the Common Law was made of “principles and grounds of judicial decisions” and in discovering these grounds, judges observed the practice of their predecessors by interpreting cases put before them before applying principles to the cases. Where no settled rule existed in the Common Law, what the judges did was legislate one. “He would be legislating as he was judging, developing and advancing the rule. The judge had to decide what the law should be at the same time he was pronouncing what the law was.” Succeeding Austin were many who repudiated the declaratory theory. Poking fun at Blackstone, Holmes LJ remarked, “The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi-sovereign that can be identified...” 

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Blackstone’s theory was fast proven to be a fallacy. “Was there in Lord Coke’s day, or is there at this moment, in existence somewhere, a ready-made, unwritten rule by which to determine the question whether the owner of real property has dominion from the center to the circumference, when that question shall be presented in an action of trespass against the aviator who has invaded the unoccupied ether above the surface?... It is but within recent years that the question could have become a practical one. Hence if the rule exists, it must have originated within the memory of living ...

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