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 men not yet in middle life.” It would thus have been absurd to think that the whole of our lex non scripta was conceived in the brains of England’s then uncouth and unlearned progenitors. The jurist mentioned that analytical scholars who had taken the theory into consideration had come to a unanimous decision that, “no rule, howsoever strongly fortified by custom, or demanded by reason and good conscience, can be accepted as embraced within the body of the unwritten law, except by the process of judicial selection and adoption.” As such, judges do make law and they do so by “gradual modification or extension of already existing rules, demanded by changes in geographical, social and economic conditions. In most cases the result is reached by appeal to existing analogies; and where this resource is lacking, by following the dictates of reason, common sense, the customs of business, and the judicial conception of justice.”
There are several instances where judges make law. Firstly, judges make law when they are called upon to give a ruling on an issue not covered by any statutory rules or precedents- where there is gap in the law. An excellent example would be the Factortame I case, where there was no law relating as to how the judiciary should conduct themselves when Parliament had acted in a way that conflicted with a European Union directive. In response to decisions in European Court of Justice, the House of Lords hastily developed a new doctrine that allowed for the act to be disapplied. Secondly, a law is made whenever the Supreme Court overrules or overturns a decision of a previous court or a lower court. Finally as to statutory interpretations, because the words used in statutory provisions can often be vague and unclear since Parliament would not be able to foresee every eventuality or fact pattern that might occur, judicial decisions often extend beyond the four corners of the statute with judges formulating their own reasons to five meaning to the statute. These decisions are then embodied in the vast body of case-law and will remain there until they are overruled, enacted as a statute or written-over by an act of Parliament. Another three important points to appreciate about judge-made laws are: Firstly, the opportunity to make pronouncements of an area of law and the subsequent legislation of it only arises should a case be brought before the court. The second, C. K. Allen explains in Law in the Making: “the creative power of the courts is limited by the existing legal material at their command. They find the material and shape it. The legislature may manufacture entirely new material.” Thirdly, there are numerous constraints external to the domestic courts that the judges are obliged to yield to, but this is not to be considered as “disinterested application of known law” by the judges.
When deciding on issues covered by statutes, the primary task of the courts is to search for and give effect to the intention of the Parliament. “Modern English legislative theory and practice seeks to fetter the judge by very detailed drafting, which attempts however unsuccessfully to envisage all the situations which the legislator intends to be covered, and by the doctrine that the courts must apply only the words of the statute, and cannot apply them by analogy to new cases not explicitly covered by these words.” However, there are many instances where the draftsman only lays down broad general principles or conceptual ideas, leaving the courts to expound their meaning and scope. When the language leads to ambiguity or unreasonableness (due to the time and circumstances surrounding its construction), a judge would be expected to use his own discretion to construe the meaning behind the statute and apply it according to the facts present in the case before him. Traditionally, the courts adopted any of the three approaches to statutory interpretation: the literal rule; the golden rule; and the mischief rule. Lord Reid said of these rules: “They are our servants not our masters.” As such, even though the courts may have been in certain ways limited by the words used in the statute, there were not bound by these rules of statutory interpretation. Moreover, judges were given wide discretionary powers to choose which rule to apply. Occasionally, problems of inconsistency arose due to the lack of a systematic approach. As a result, in 1969 the Law Commissions proposed for a reformation to eliminate shortcomings in the system. Although no legislation was passed subsequent to the proposal, academic writers like Sir Rupert Cross took advantage of it where in his work he proposed a unified contextual approach and a purposive approach to statutory interpretation. His works have been frequently referenced to by the courts. In addition to interpreting statutes in a way that reflects the will of Parliament when it was enacted, judges must also, as far as it is possible, interpret them in a way which is compatible with the Convention rights, and with EU directives.
A peculiar and distinct feature in the administration of justice of the English Courts is the rigid and the strongly coercive nature of the doctrine of precedent, which operates within and governs the system of case-law. Judges make law by virtue of precedents. A judge’s decision in any particular case constitutes a precedent and one thing a judge cannot do is to prevent his decision on a point of law from constituting a precedent. The doctrine connotes that a judge in a subsequent case must take into account the decision of judges in previous cases. Whether the decision is persuasive or binding would depend on the issue and facts surrounding the case and also whether the principles found in the judgement of previous cases formed the obiter dicta or the ratio decidendi. The principle of stare decisis binds each appellate court (except the Supreme Court) to its previous decisions and each court is bound by the decisions of the courts above it in the hierarchy. Because of the high degree of uncertainty surrounding the retrospective nature of ad hoc judicial decisions, this system is meant to give a sense of certainty and stability within the body of case-law. However, strict adherence to precedents might have in many instances retarded the development of judge-made laws:
One American jurist quite accurately described the reserved attitude of English judges towards law-making: “We could if we would but we think it better not.” He explained, “They would like to decide otherwise, they hint but the law does not permit. They emphasise that it is as binding upon them as it is upon litigants. If a judge leaves the law and makes his own decisions, even if in substance they are just, he loses the protection of the law and sacrifices the appearance of impartiality which is given by adherence to the law. He expresses himself personally to the dissatisfied litigant and exposes himself to criticism. But if the stroke is inflicted by the law, it leaves no sense of individual injustice.” The judges, Lord Wright illustrated, proceeded “from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point and avoiding the dangers of the open sea of system and science.” Further, the limitations of the doctrine of precedent on judicial innovation and rationalisation were observed by Dr Johnson who wrote, “The more precedents there are, the less occasion is there for law; that is to say, the less occasion is there for investigating principles.” However, much of the judicial timidity mentioned above has, of course, been eradicated when the Practice Statement 1966 was issued, although lower courts are still very much bound by the decision of the higher courts in the hierarchy.
With regards to law-making and precedents, Lord Reid said: “... it is not the function of... judges to frame definitions or to lay down hard and fast rules. It is their function to enunciate principles and much that they say is intended to be illustrative or explanatory and not to be definitive.” While precedents play a major role in governing the consistency in the system of the Common Law, Holmes has said, ironically, that the law “is always approaching, and never reaching consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.”
In conclusion, it is established that within certain narrow and clearly defined limits, new law is created by the English judiciary. Lloyd more recently said that “[n]obody now suggests that the common law is static. Is it then capable of being changed? Or is it only capable of being developed? The common sense answer is that the common law is capable of being changed, not only by legislation, but also by judicial decision. This is nowhere clearer than when a long-standing decision of the Court of Appeal is overruled.” The law-making ability of the judiciary effectively ensures that the law makes a “healthy and continuous growth- crescit occult, velut arbour aevo- adapting itself to new environment, developing and yet preserving identity.” However, underlying the law-making function of the judiciary is a constitutional hazard; under whose authority do they make laws and while Parliament is accountable to the electorate, who are the judges accountable to? Thus, should the legislative prerogative of the judiciary be further enlarged; or should judges be allowed to continue in the attitude which says “boni judicis est lites dirimere” and refrain, as far as possible, from legislating. Davis asserted that “the English courts may be too much limiting themselves to the tasks of bricklayers and too much neglecting the architecture.” Furthermore, an American jurist said, “Let us ask ourselves the question- which of the two law-making bodies, the legislature and the courts, will prima facie establish juster private laws? Statutes are conceived and drawn by men not always trained in the law. Not infrequently they are framed in haste, obscurely expressed, and adopted in bulk, with but little time and less ability on the part of the framers to forecast their precise scope, and the effect of the statutory mandate on persons, things, and situations not foreseen and not in mind. This result is that much of the time and brain-sweat of the courts must be devoted to the burden of interpreting the legislative intent. And even though this intent be plain the courts are frequently driven to a forced interpretation to avoid unjust judgements. This consequence is that under the guise of interpretation, judicial legislation must supplement or alter the written rule.” On the other hand, Devlin condemned the courts in the United States for constructing a device that allows them to decide a present case according to the law as it stood at that time and to declare that prospective cases would henceforth be decided otherwise. He said, “I do not like it. It crosses the Rubicon that divides the judicial and the legislative powers. It turns judges into undisguised legislators.”
The Practice Statement 1966 was a remarkable advancement in the history of English courts as far as judge-made law is concerned. Even before that, judicial valour and creativity made a way for judges to circumvent the injustices in the system as seen in the great case of Donoghue v Stevenson. At the end of the day, we ask the question as Devlin had asked, “What is the business of a court of law? To make law or to do justice according to law?” The answer is simple: The foremost and utmost objective of the courts is to see that justice is served; but in areas where the application of pre-existing law would lead to an erroneous outcome, they ought to make new law to achieve that very purpose.
English Legal System Assignment by Khong Mei-Yan (0311440)
Jeremy Bentham, Truth versus Ashhurst 1792 (The Works of Jeremy Bentham, published under the superintendence of his executor, John Bowring, vol.V (Edinburgh, Tait; London, Simpkin, Marshall, 1843) 234-5
In Donoghue v Stevenson [1932] UKHL 100, Lord Denning said, “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, “Who is my neighbour?” receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
Practice Statement [1966] 3 All ER 77
Francis Bacon, Of Judicature (XII The Worlds of Francis Bacon, Spedding, Ellis & Heath edition) 265
Lord Justice Scruttton in Harnett v. Fisher [1927] 1 K.B. 402, 424
Professor of Law at Harvard University Law School 1919-1956
Zechariah Chafee, Jr., Do Judges Make Or Discover Law (Proceedings of the American Philosophical Society, Vol. 91, No. 5, Dec 1947) 405, 406
Sir Paul Vinogradoff, F.B.A., Introduction to Historical Jurisprudence (Batoche Books Kirchener, 2002) 1,28
Blackstone, William (Commentaries, 2nd edition, Oxford, Clarendon Press, 1766) 69
William Minor Like, Judge-Made Law ( Virginia Law Review, Apr 1929) Vol. XV, No. 6, 525,527
Blackstone, William (Commentaries, 2nd edition, Oxford, Clarendon Press, 1766) 69
Jeremy M. Miller, Law's Empire (Campbell Law Review, 1986) Vol. 9, Art 8, 203
Austin, John, Lectures on Jurisprudence (5th edition by R.Campbell, London, John Murray, 1885) 242
Michael Lobban, Legal Theory and Judge-made law in England 1850-1920 (Quoderni Fiorentini vol. 40, Queen Mary, University of London, 2011) 553-558
Dissenting in Southern Pacific Company v. Jensen, 244 United States Reports 205 at 222 (1917)
William Minor Like (Judge-Made Law, Virginia Law Review, Apr 1929) Vol. XV, No. 6, 525,526
R v Secretary of State for Transport ex parte Factortame Ltd [1990] 2 AC 85
Merchant Shipping Act 1988
Professor Jaffe, English and American Judges as Lawmakers (Clarendon Press, Oxford, 1969) 13
M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence: Judge-Made Law (Sweet & Maxwell, 8th edition, 2008) 1547,1548
Fisher v Bell [1961] 1 QB 394
Adler v George [1964] 2 QB 7
Smith v Hughes [1960] 1 WLR 830
Maunsell v. Olins [1975] AC 373, 382
The Law Commission and The Scottish Law Commission: The Interpretation Of Statutes (1969)
“a limited degree of statutory intervention is required... to clarify, and in some respects to relax the strictness of, the rules which... exclude altogether or exclude when the meaning is unambiguous, certain material from consideration”.
Rupert Cross, Statutory Interpretation (3rd edition, Butterworths, 1976)
Unified Contextual Approach
The judge must give effect to the [grammatical and] ordinary, or, where appropriate, the technical meaning of words in the general context of the statute; he must also determine the extent of general words with reference to that context.
If the judge considers that the application of the words in their grammatical and ordinary sense would produce a result which is contrary to the purpose of that statute, he may apply them in any secondary meaning that they are capable of bearing.
The judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute.
In applying the above rules the judge may resort to certain aids to construction and presumptions... The judge must interpret a statute as to give effect to directly applicable European Community law, and, in so far as this is not possible, must refrain from applying the statutory provisions which conflict with that law.
R v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) (2003), House of Lords
Human Rights Act 1998, s.3(1)
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
Attorney-General’s Reference No. 4 of 2002; Sheldrake v DPP (2004), House of Lords
Lister and Others v Forth Dry Dock Co Ltd and Another [1990] 1 AC 546, 559. Lord Oliver said, “If the legislation can reasonably be construed so as to conform with those obligations--obligations which are to be ascertained not only from the wording of the relevant Directive but from the interpretation placed upon it by the European Court of Justice at Luxembourg--such a purposive construction will be applied even though, perhaps, it may involve some departure from the strict and literal application of the words which the legislature has elected to use.”
The doctrine of precedent was a creature of the eighteenth century and developed concurrently with the collection of law reports, then called year-books.
Cross & Harris, Precedent in English Law (4th edition, Oxford University Press, Clarendon Law Series, 1991) 42
Professor Jaffe, English and American Judges as Law-makers (Clarendon Press, Oxford 1969) 35
Lord Devlin, Judges and Lawmakers (The Modern Law Review, Jan 1976) Vol. 39, No. 1, 1,5
Lord Wright, The Study of Law (The Law Quarterly Review, 1938) 185-186
Boswell, The Life of Samuel Johnson (J.M. Dent & Co. Everyman Edition, 1906) Vol.1, 416
Practice Statement [1966] 3 All ER 77
Broome v Cassell & Co. Ltd. [1972] AC 1027, 1028
Kleinwort Benson ltd v. Lincoln City Council [1999] 2 A.C. 349, 393
Clark, English Legal Institutions (4th edition) 8
It is the duty of a good judge to prevent litigation
Kenneth Culp Davis, The Future of Judge-made Public Law in England: A problem of Practical Jurisprudence (Columbia Law Review, 1961) Vol. 61, 201
Lord Devlin, Judges and Lawmakers (The Modern Law Review, Jan 1976) Vol. 39, No. 1, 1,11
Donoghue v Stevenson [1932] UKHL 100
Lord Devlin, Judges and Lawmakers (The Modern Law Review, Jan 1976) Vol. 39, No. 1, 1,11