C.: Characteristics of Judge-made Law

(1) Judge-made law is real law, though made under the form of, and often described, by judges no less than by jurists, as the mere interpretation of law.

Whoever fairly considers how large are the masses of English law for which no other authority than judicial decisions or reported cases can be found, will easily acquiesce in the statement that law made by the judges is as truly law as are laws made by Parliament. In what sense, if at all, the function of the judges can be described as merely interpretation of the law is considered in a later part of this Note.

(2) Judge-made law is subject to certain limitations.

It cannot openly declare a new principle of law: it must always take the form of a deduction from some legal principle whereof the validity is admitted, or of the application or interpretation of some statutory enactment.

It cannot override statute law.

The Courts may, by a process of interpretation, indirectly limit or possibly extend the operation of a statute, but they cannot set a statute aside. Nor have they in England ever adopted the doctrine which exists, one is told, in Scotland, that a statute may become obsolete by disuse.

It cannot from its very nature override any established principle of judge-made law.

A superior Court may, of course, overrule any principle of law that derives its authority merely from the decisions of an inferior Court. Thus the House of Lords may, and occasionally has, set aside or treated as not being in reality law a rule which, though of considerable antiquity and long received as law, has not been confirmed by the sanction of the House itself; and the Court of Appeal is not bound to follow principles in favour of which nothing can be cited but judgments of the King’s Bench Division or of the older Courts of which the King’s Bench Division is the successor. But no Court—not even the House of Lords—will directly invalidate a rule sanctioned by that House.

Even this statement must be taken subject to some slight limitation. The House will occasionally limit the operation of a well-established legal rule either by subtle distinctions or by “refusing to carry a rule further,” as the expression goes. By this is really meant that the House, while recognising the validity of some well-recognised legal principle, and applying it to cases which indubitably fall within it, will not apply it to other cases which can be brought within it only by some process of logical argument. Nor is there anything in this course inconsistent with sound logic and good sense. It is a mere recognition of the undoubted fact that a sound principle may, even as expressed in authoritative judgments, cover cases to which it was never meant to apply, and which were not before the mind of the Court which enunciated the principle. When this is so, a Court of final appeal rightly gives effect to the real meaning rather than to the mere words of a rule of law. This, at any rate, is the way in which our Courts sometimes deal with rules resting upon judicial decisions. The freedom with which they interpret such rules is a virtue. What is to be regretted is that our Courts have felt themselves less at liberty, in modern times at least, with regard to the interpretation of statutes, and are apt to pay more attention to the words than to the spirit of an Act of Parliament.

(3) The incapacity of the Courts to change a rule on which they themselves have conferred the character of law leads to the important result that the legislative powers of the Courts, unlike in this to the authority of Parliament, become gradually in particular spheres exhausted.

Their capacity, for example, to carry out further reforms in regard to the property rights of women had early in the nineteenth century all but reached its final limit (see pp. 375-383, ante). Before 1870 it was exhausted. The field for innovation or reform was filled or blocked by rules which, whether created by statute or by judicial legislation, neither the Court of Chancery nor any other Court had the power to modify or change; and what happened in this particular instance must always happen whenever a given department of law has been made the subject of much legislation, whether parliamentary or judicial; the way towards change or reform has got blocked by laws which, under the English Constitution, can be changed or amended only by the sovereign authority of Parliament. From this fact it might be inferred that the sphere of judicial legislation must gradually become narrower and narrower, and judicial legislation itself come at last completely to an end. This conclusion contains this amount of truth, that no modern judges can mould the law anything like as freely as did their predecessors some centuries ago. No Lord Chief-Justice of to-day could occupy anything like the position of Coke, or carry out reforms such as were achieved or attempted by Lord Mansfield. There are whole departments of law which no longer afford a field for judicial legislation. But for all this the judicial authority of the Bench, though subject to restriction, is not likely to be reduced to nothing. The complexity of modern life, in the first place, produces new combinations of circumstances, which, in so far as they give rise to legal disputes, bring before our tribunals what are in reality new cases—that is, cases which must be determined either by applying to their solution some new principle, or, what more often happens, by the extension of some old principle which is found to be really applicable. The interpretation, in the second place, of statutes will always exercise the ingenuity of our judges. In either case there is room for the exercise of what is in truth judicial legislation.

(4) Judge-made law is apt to be hypothetical law.

A clear rule, supported by a judgment of the House of Lords, is in reality as much a law as any Act of Parliament, and this holds a fortiori true of a rule supported by many judgments both of the House of Lords and of other Courts. But there may well be rules established by the judgments, say, of the King’s Bench, of the old Court of Exchequer Chamber, or of the present Court of Appeal, which have been generally acquiesced in, but have never been brought before the House of Lords. This was till quite recently—to recur to an illustration already used—the state of things with regard to the rule that A had a right of action against X, who induced N to break his contract with A. Till a year or two ago it depended for its authority wholly upon a judgment of the Queen’s Bench, reinforced by a later decision of the Queen’s Bench Division. Was it good law or not? Not the most learned of lawyers could give an absolutely conclusive reply; no one could in reality say more than that the rule in question was hypothetical law. And a good deal of such hypothetical law is, it should be observed, always in existence, and may continue to exist for a length of time. For many years it was a matter of real uncertainty whether the Divorce Court had jurisdiction to divorce persons permanently resident though not domiciled in England. A decision of the Court of Appeal showed that such jurisdiction might exist (Niboyet v. Niboyet (1878), 4 P.D. (C.A.) 1). But many of the best lawyers entertained grave doubts whether the decision of the Court of Appeal was good law. It was in truth hypothetical law. The doubts of critics have at last been justified. The decision of the Court of Appeal in Niboyet v. Niboyet has been virtually overruled, and we now know with something like certainty that domicil must be taken to be in England the basis of divorce jurisdiction. This tendency of judicial legislation to foster the existence of hypothetical law is its worst defect. The public, it may be suggested, would gain a good deal if a power were conferred upon the House of Lords of calling up for the House’s decision (say on the motion of the Attorney-General, and, of course, at the public expense) cases determined by the Court of Appeal, and involving the determination of an important principle of law which had never come before the House of Lords.