The problem with precedent.

Authors Avatar

The problem with precedent

One of the most widely-accepted principles of the English legal system is what is known as the `declaratory theory' of judicial decision-making. This principle states that when judges are required to make decisions, they do not create or change the law, they merely `declare' it. That is, a judge says what he or she finds the law to be; no `new' law is ever created by judges. New law comes from Parliament. For example, the Criminal Justice Bill that is currently going through Parliament will make fairly radical changes to the criminal law. It will take away the blanket immunity that currently exists from being prosecuted twice for the same offence. No-one is suggesting that this Bill declares the law: the ancient `double-jeopardy' principle has existed for centuries. When the Bill is enacted, the law will simply change. This article attempts to show, first, that the declaratory theory itself is based on indefensible assumptions of fact. Second, it shows that the theory sometimes leads to bizarre conclusions, which can only be avoided by the most strained reasoning. Finally, it examines why the theory commands so much reverence, when most academics and many judges believe it to be fatally flawed.

Why the declaratory theory is factually indefensible

The classical exposition of the declaratory theory is that of Lord Esher in Willis v Baddeley (1892):

``There is, in fact, no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable.''

That judges appear to create and change law is undeniable; cases like Donaghue v Stevenson, Hedley Byrne v Heller, and Wednesbury represent significant developments in the law. In Lord Esher's view, the judges in these cases would simply be applying existing principles to new fact situations. But where do these existing principles come from? Some of them, no doubt, come from previous case law. When a judge is called on to decide a case, most often a decision can be made by looking at previous cases whose facts are similar to those at issue, and reasoning from them. Very often there will be previous cases that are binding on a particular court, and these will dictate the outcome. But unless we are to accept an infinite regress of case law, back to the very dawn of time, there must be some point in the past at which an issue was first decided. The romantic view is that the earliest judicial decisions were made by the `wandering justices' of the 13th century, who travelled the land at the King's behest, applying and unifying the existing law of the land. The pragmatic view is that the English common law results from an attempt by the Norman French nobility to apply its standards of law in a conquered country, while giving an illusion of continuity. Whether the legal developments of the medieval period followed from a process of approving established legal custom, or from the imposition of a foreign jurisprudence, neither represent an answer to the question where the foundational principles come from. There are really only two possibilities: either they were, at some point, created by the judges, or they were based on existing `universal truths' that were self-evident to the judges. The declaratory theory repudiates the notion that the judges `made things up', so the only alternative is that they were based on universal truths. The notion that law is based on fundamental, self-evident principles of ethics is often called `natural law' jurisprudence. To be fair, the idea of `natural law' has had a bit of a revival in the last fifty years or so, after being out of favour since the 18th century. The idea that the declaratory theory can be traced back to natural law therefore does not attract the same scepticism today as it would have in the 19th century. The problem with natural law is that even if one is prepared to accept its basic tenet, that there indeed are self-evident principles of ethics, it is by no means obvious that every situation that requires a judicial decision is one in which such fundamentals are at issue.
     Consider, for example, the well-known case of
Entores v Miles Far East Corp (1955). This concerned the formation of a contract by telex machine, in the very early days of this technology. Previously most formal business transactions would have been carried out by post; the `postal rule' was - and still is - that if person A offers to contract with person B, then the contract is formed when B's letter of acceptance is posted to A. This is the case even if B's acceptance never even reaches A. When considering the use of telex, the court had to decide whether the same principle could be applied to telex as to post, that is, whether a telexed acceptance was effective on sending, or on receipt. The leading judgement in Entores was given by Denning LJ. In his judgement he does not refer to any existing case law, or any legal principle. Instead, he says that it is simply reasonable and obvious that a telex must be received to be effective. If the declarative theory is correct, then Denning's judgement cannot be creating law: it must be declaring what the law is. But since he does not refer to any existing law, it must, presumably, be derived from universal principles. Now, a proponent of natural law may believe it is self-evident that, for example, murder and rape are wrong. But it takes a real leap of faith to believe that there are principles of natural law at stake in deciding when a telexed contract is formed.
     The reality, of course, is that when
Entores was heard, no-one really wanted to see the `postal rule' extended to a new technology. Denning's judgement is an entirely pragmatic one. It does not require any higher principles to be considered.
     In summary, the declaratory theory is predicated absolutely on acceptance of a natural law view of jurisprudence, not just for fundamental principles of ethics, but for
everything. This, I suggest, is just too much to swallow.

Join now!

Why the declaratory theory produces bizarre results

Law students generally know about the `retrospectivity of the declaratory theory'; but it doesn't seem to be well understood that this is not a doctrinal matter, or something that can be argued either way, it is an inevitable conclusion of the declaratory theory. If a judicial decision cannot create new law, then when the judge declares the law, as a matter of plain logic he is declaring what the law always was. In the Entores example discussed above, this does not create a problem. It established that the use of telex had certain legal ...

This is a preview of the whole essay