D.: Objections to or Criticisms on the theory of Judge-made Law

The view of judge-made law here propounded is exposed to three different objections or criticisms.

First objection.—There is no such thing, it is sometimes objected as judge-made law; Courts or judges are never the creators of law; they always act, as long at any rate as they discharge their proper duty, as interpreters of the law and not as legislators; the law which they interpret may be statute law, or it may be a rule of law created by custom, but in any case it exists and is known to the people of a given country before the judges undertake to interpret it. The validity, it is added, of this objection is proved by the fact that Courts invariably profess to explain a law which already exists and needs only explanation.

Now, in replying to this objection, which may be put in various forms, it is well to make one or two admissions. If the critic means only that the very elastic term “interpretation” may be so extended as to cover everything which is done by an English judge when performing his judicial duty, it may be admitted that this is so. A mere dispute about the right use of a word which easily admits of almost indefinite extension is an idle piece of logomachy which it is wisdom to avoid. If, further, it be meant that in many cases a judge or a Court does act merely as an explainer of the law, this again may easily be conceded. Nor can it be disputed that the explanation of a rule may, especially where the rule is followed as a precedent, so easily glide into the extension or the laying down of the rule, or in effect into legislation, that the line which divides the one from the other can often not be distinctly drawn. And to these admissions may be added the further concession, that in modern times, when an immense number of fixed rules established either by Parliament or by the Courts are in existence, it rarely happens that a judge, consciously at any rate, does more than expound what one may well call established legal principles. But all these concessions do not get rid of the fact that a great deal of law has been, and a good deal still is from time to time, the result of, and in effect created by, the action of the Courts. The very rules which modern judges only interpret or explain can in many cases be drawn only from the judgments of their predecessors. A judge who applies to a particular case the principle that a promise made without any consideration, or in popular language a promise for which the promisor gets no advantage, is void, certainly may do no more than apply or interpret a well-known legal principle. But the principle itself does not originate in any statute. The long and intricate process by which it was thought out and established affords a singular instance of judicial legislation. When a judge applies the words of a statute to a particular case he may well do no more than follow a rule which he in no way creates, but, as the history of all our older statutes and of many of our modern statutes shows, judges who interpret statutes and whose interpretation become precedents in reality legislate. To say that all interpretation is legislation is, no doubt, to maintain a paradox. But this paradox comes nearer the truth than the contention that judicial law-making is always in reality interpretation. Nor does our objector gain anything by insisting that judge-made law often is what it assuredly is not always, the mere recognition or interpretation of custom. The same thing may be said of many statutes. The motives which induce either parliaments or judges to treat certain customs as laws do not invalidate the fact that when parliaments or judges give effect to a custom they legislate. Here again it is well to avoid arguments turning mainly upon the meaning of words. Whether and in what sense custom is to be considered the source of law, or whether it be or be not true that judge-made law or judicial legislation are expressions open to criticism, are questions which a reasonable man may well treat with some indifference. If an objector admits, what with regard to English law he can hardly dispute, that great portions of it are recorded only in and derive their authority from the judgments of the Courts, the objection that there is no such thing as judge-made law has received a substantial answer.

Second objection.—Judges, it has sometimes been maintained, have undoubtedly in fact made law, but have accomplished their end by the fraudulent pretence that they were interpreting a law which, without any moral claim to do so, they were in fact creating.

This contention, that laws are the result of judicial frauds is nearly akin to the delusion that religions are the growth of priestly imposture. Both of these notions are ideas belonging to an obsolete mode of thought. In neither case do they deserve careful confutation. The notion that judges pretended to expound the laws which they really made is based upon ignorance of the fact that fiction is not fraud, and that legal fictions are the natural product of certain social and intellectual conditions. Nor, be it added, has the progress of civilisation as yet enabled us to get rid entirely of something very like legal fictions, or at any rate of the tendency in some departments of law to confuse facts with fictions. This habit is still very traceable in the field of constitutional law. It is convenient—perhaps necessary—to consider the will of the majority as the will of the whole nation. But it is perfectly clear that this identification, whatever its convenience or its necessity, is a political fiction. What, again, are we to say about the powers ascribed by English constitutionalists to the King? In some instances, no doubt, the fiction is a mere figure of speech. Few, one trusts, are the men who seriously believe that the millions raised by taxes are granted to or spent by the King. Most persons probably know that the King himself takes no share in the administration of justice. But what part does he or can he take in the appointment of ministers, or in moulding the policy of the country? The wisest constitutionalist is the man who on such matters keeps a judicious silence. One may conjecture that those who minimise and those who “maximise” (if we may use a term invented, like minimise, by Bentham) the action of the Crown are in equal danger of error. Fiction and fact are here probably blended. The artificial ascription of almost unlimited power to the King is a means of concealing the fact that powers which are not unlimited are indefinite.

Third objection.—The Courts, it is sometimes said and still more often thought, though they certainly do legislate, never ought to legislate at all.

This is an idea constantly put forward by persons who, rightly or wrongly, object to some principle established by judicial decisions. Such critics urge not only that the rule which they condemn is a bad one, on which point they may perfectly well be in the right, but also that the rule, whether wise or unwise, whether right or wrong, ought never to have been laid down at all by the Courts, and this on the ground that it is the business of the Courts to decide cases and not to make laws.

The answer to this line of criticism is that the person who pursues it has in no case a right to blame the judges. His argument may mean that the whole English judicial system, with its respect for precedent, is a bad one. So be it. But, even if this be so, English judges cannot be blamed for acting in accordance with a system which they are appointed to administer. Our objector’s argument, on the other hand, may mean that, the English system being what it is, judges can, if they choose to do so, always avoid judicial legislation. But, if this be the critic’s meaning, he distinctly ascribes to judges a liberty of choice which they do not in fact possess. To simplify the matter, let us confine our attention to the House of Lords. A case comes before the House which can only be decided by either affirming or denying the application or validity of some principle. But either affirmation or denial will equally establish a precedent, or in other words, a legally binding rule or law. How under this state of things can the House by any possibility avoid judicial legislation? Return to the case already noted of Derry v. Peek. The question to be determined was, whether gross negligence when unaccompanied by deceit could be treated as equivalent to fraud. There was much to be said in favour of an affirmative answer, and the Court of Appeal said it with great force. There was much also to be said in favour of a negative answer, and this, too, was said by Lord Herschell and other eminent lawyers with the greatest vigour. The House of Lords did, as a matter of fact, give a negative reply, and laid down the law that carelessness was a different thing from lying. It is not necessary to decide or to intimate which of two possible rules was the more logical. All that need here be contended is that the House was compelled to lay down one rule or the other, and that whichever rule was laid down would in effect become law. In this case, as in a thousand others, the House, though acting as a Court, was compelled to legislate; and what is true of the House of Lords applies in a measure to every Court throughout the land. A critic who objects to the rule, or in reality the law established by a judgment of the House of Lords may maintain that the House committed an error. He may maintain that the rule which the Lords established was not a logical deduction from the principles they intended to follow, or that the rule, though logical, was inexpedient, or, if he pleases, that the rule was both illogical and inexpedient. But if he has mastered the nature of judge-made law he will hardly commit himself to the contention that the House of Lords was to blame simply because its judgment established a fixed rule of law. This was a result over which the House had no control, and for which, therefore, it deserved neither praise nor blame.

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