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).