Lecture XI: Judicial Legislation, I.: The Special Characteristics of Judicial Legislation in Relation to Public Opinion

Lecture XI.My purpose in this Lecture is, first, the description of the special characteristics of judicial legislation as regards its relation to public opinion; and, next, the illustration, by a particular example,—namely, the changes in the law as to married women’s property,—of the way in which judge-made law may determine the course and character of parliamentary legislation.

As all lawyers are aware, a large part and, as many would add, the best part of the law of England is judge-made law—that is to say, consists of rules to be collected from the judgments of the Courts. This portion of the law has not been created by Act of Parliament, and is not recorded in the statute-book. It is the work of the Courts; it is recorded in the Reports; it is, in short, the fruit of judicial legislation. The amount of such judge-made law is in England far more extensive than a student easily realises. Nine-tenths, at least, of the law of contract, and the whole, or nearly the whole, of the law of torts are not to be discovered in any volume of the statutes. Many Acts of Parliament, again, such as the Sale of Goods Act, 1893, or the Bills of Exchange Act, 1882, are little else than the reproduction in a statutory shape of rules originally established by the Courts. Judge-made law has in such cases passed into statute law. Then, too, many statutory enactments, e.g. the fourth section of the Statute of Frauds, though they originally introduced some new rule or principle into the law of England, have been the subject of so much judicial interpretation as to derive nearly all their real significance from the sense put upon them by the Courts. Nor let anyone imagine that judicial legislation is a kind of law-making which belongs wholly to the past, and which has been put an end to by the annual meeting and by the legislative activity of modern Parliaments. No doubt the law-making function of the Courts has been to a certain extent curtailed by the development of parliamentary authority. Throughout the whole of the nineteenth century, however, it has remained, and indeed continues to the present day, in operation. New combinations of circumstances—that is, new cases—constantly call for the application, which means in truth the extension of old principles; or, it may be, even for the thinking out of some new principle, in harmony with the general spirit of the law, fitted to meet the novel requirements of the time. Hence whole branches not of ancient but of very modern law have been built up, developed, or created by the action of the Courts. The whole body of rules, with regard to the conflict of laws (or, in other words, for the decision of cases which contain some foreign element), has come into existence during the last hundred and twenty, and, as regards by far the greater part of it, well within the last eighty, or even seventy years. But the whole of this complex department of law has neither been formed nor even greatly modified by Parliament. It is the product of an elaborate and lengthy process of judicial law-making.

The Courts or the judges, when acting as legislators, are of course influenced by the beliefs and feelings of their time, and are guided to a considerable extent by the dominant current of public opinion; Eldon and Kenyon belonged to the era of old toryism as distinctly as Denman, Campbell, Erle, and Bramwell belonged to the age of Benthamite liberalism. But whilst our tribunals, or the judges of whom they are composed, are swayed by the prevailing beliefs of a particular time, they are also guided by professional opinions and ways of thinking which are, to a certain extent, independent of and possibly opposed to the general tone of public opinion. The judges are the heads of the legal profession. They have acquired the intellectual and moral tone of English lawyers. They are men advanced in life. They are for the most part persons of a conservative disposition. They are in no way dependent for their emoluments, dignity, or reputation upon the favour of the electors, or even of Ministers who represent in the long run the wishes of the electorate. They are more likely to be biassed by professional habits and feeling than by the popular sentiment of the hour. Hence judicial legislation will be often marked by certain characteristics rarely to be found in Acts of Parliament.

First.—Judicial legislation aims to a far greater extent than do enactments passed by Parliament, at the maintenance of the logic or the symmetry of the law. The main employment of a Court is the application of well-known legal principles to the solution of given cases, and the deduction from these principles of their fair logical result. Men trained in and for this kind of employment acquire a logical conscience; they come to care greatly—in some cases excessively—for consistency. A Court, even when it really legislates, does so indirectly. Its immediate object is to apply a given principle to a particular case, or to determine under which of two or more principles a particular case really falls. The duty of a Court, in short, is not to remedy a particular grievance, but to determine whether an alleged grievance is one for which the law supplies a remedy. Hence the further result that Courts are affected, as Parliament never is, by the ideas and theories of writers on law. A Court, when called upon to decide cases which present some legal difficulty, is often engaged—unconsciously it may be—in the search for principles. If an author of ingenuity has reduced some branch of the law to a consistent scheme of logically coherent rules, he supplies exactly the principles of which a Court is in need. Hence the development of English law has depended, more than many students perceive, on the writings of the authors who have produced the best text-books. Some eighty years ago Serjeant Stephen published a Treatise on the Principles of Pleading, which transformed the maxims of art followed by skilful pleaders into the principles of a logically consistent system. His book told almost immediately upon the whole course of procedure in a civil action. Story’s Conflict of Laws, which appeared in 1834, though the work of an American lawyer, forthwith systematised, one might almost say created, a whole branch of the law of England. The law of damages has, it is said, come into existence through the writings of a well-known English and a well-known American author.

Secondly.—Judicial legislation aims rather at securing the certainty than at amending the deficiencies of the law. The natural tendency of a well-trained judge is to feel that a rule which is certain and fixed, even though it be not the best rule conceivable, promotes justice more than good laws which are liable to change or modification. This is the true and valid defence for reverence for precedent. A satirist has suggested that the resolution to follow precedents is the same thing as the determination that, when once you have decided a question wrongly, you will go on deciding it wrongly ever after, and there are instances enough to be found in the Reports where a decision of very dubious soundness has been systematically followed, and has led to a misdevelopment of the law. But the best answer to the contempt thrown on precedent may be given in the language of one of the most eminent among our judges.

“Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency, and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science.”

And this view is substantially sound. Respect for precedent is the necessary foundation of judge-made law. If Parliament changes the law the action of Parliament is known to every man, and Parliament tries in general to respect acquired rights. If the Courts were to apply to the decision of substantially the same case one principle to-day, and another principle to-morrow, men would lose rights which they already possessed; a law which was not certain would in reality be no law at all. Judicial legislation, then, is a form of law-making which aims at and tends towards the maintenance of a fixed legal system.

Thirdly.—The ideas of expediency or policy accepted by the Courts may differ considerably from the ideas which, at a given time, having acquired predominant influence among the general public, guide parliamentary legislation.

It is quite possible that judicial conceptions of utility or of the public interest may sometimes rise above the ideas prevalent at a particular era. It is clear that the system of trusts, invented and worked out by the Courts of Equity, has stood the test of time, just because it gave effect to ideas unknown to the common law, and at one period hardly appreciated by ordinary Englishmen. In the field of commercial law Lord Mansfield carried out ideas which, though in harmony with the best opinion of the time, could hardly have been, during the era of old toryism, embodied in Acts of Parliament. Even at the present day the Courts maintain, or attempt to maintain, rules as to the duty of an agent towards his employer which are admitted by every conscientious man to be morally sound, but which are violated every day by tradesmen, merchants, and professional men, who make no scruple at giving or accepting secret commissions; and these rules Parliament hesitates or refuses to enforce by statute. Here, at any rate, the morality of the Courts is higher than the morality of traders or of politicians. But it has of course often happened that the ideas entertained by the judges have fallen below the highest and most enlightened public opinion of a particular time. The Courts struggled desperately to maintain the laws against regrating and forestalling when they were condemned by economists and all but abolished by Parliament. It is at least arguable that the Courts restricted within too narrow limits the operation as regards wagers of the Gaming Act, 1845, and missed an opportunity of freeing our tribunals altogether from the necessity of dealing at all with wagering contracts. There are certainly judicious lawyers who have thought that, if the Common Law Courts had given more complete effect to certain provisions of the Common Law Procedure Act, 1854, part of the reforms introduced by the Judicature Act, 1873, might have been anticipated by nearly twenty years. However this may be, we may, at any rate as regards the nineteenth century, lay it down as a rule that judge-made law has, owing to the training and age of our judges, tended at any given moment to represent the convictions of an earlier era than the ideas represented by parliamentary legislation. If a statute, as already stated, is apt to reproduce the public opinion not so much of to-day as of yesterday, judge-made law occasionally represents the opinion of the day before yesterday. But with this statement must be coupled the reflection, that beliefs are not necessarily erroneous because they are out of date; there are such things as ancient truths as well as ancient prejudices. For the purpose of these lectures, however, the essential matter to bear in mind is neither the merit nor the demerit of judge-made laws, but the fact that judicial legislation may be the result of considerations different from the ideas which influence Parliament. The legislative action of the Courts represents in truth a peculiar cross-current of opinion, which may in more ways than one modify the effect of that predominant opinion of the day which naturally finds expression in a representative assembly such as the House of Commons. Thus ideas derived from the Courts (which, be it added, may tell upon public opinion itself) may promote or delay the progress—may mould the form or even deeply affect the substantial character of parliamentary legislation.