LECTURE XI JUDICIAL LEGISLATION XI. My purpose in this Lecture is, first, the description Lecture of the special characteristics of judicial legislation1 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. I. The Special Characteristics of Judicial Legislation in Relation to Public Opinion 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 1 See Ilbert, Legislative Methods, pp. 6-8;[Pollock, Essays in Jurisprudence and Ethics, p. 237; Pollock, First Book of Jurisprudence (2nd ed.), Pt. II. ch. vi. 2 These rules will assuredly be enforced by the Courts, and are therefore laws. True indeed it is that the function of an English Court is primarily to decide in accordance with legal principles any particular case which comes before it. It is the interpreter, not the maker of a law. As, however, "it may with equal verbal correctness "be affirmed in one sense, and denied in another, that interpretation '(whether performed by judges or by text-writers) makes new law" XI. Lecture 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 (First Book of Jurisprudence (2nd ed.) p. 236), the question whether we ought to use such expressions as judge-made law or judicial legislation is, for the purpose of these Lectures, of no real consequence. See Appendix, Note IV., Judge-made Law. 1 It is certain that no man could understand the full and true effect of either the fourth or the seventeenth section of the Statute of Frauds (which now is the fourth section of the Sale of Goods Act, 1893), without studying the vast number of cases interpreting these enactments. See Law Quarterly Review (i. p. 1) for an expression in words by Sir J. F. Stephen and Sir F. Pollock of the full import of the Statute of Frauds, s. 17. XI. Parliaments. No doubt the law-making function Lecture 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.j 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 1 Dicey, Conflict of Laws, p. 1. XI. Lecture 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 legis 1 Till quite recently judges not only were, as they still are, irremovable by any Ministry, however powerful, but had also little to hope for from the Government by way of promotion. The system created by the Judicature Acts has, with its many merits, the unintended defect that it makes the promotion of a judge, eg. to a seat in the Court of Appeal, dependent on the goodwill of the Chancellor or the Prime Minister. XI. lates, does so indirectly. Its immediate object is to Lecture 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 1 My learned friend Mr. Westlake's Private International Law was published in 1858. It introduced English lawyers to the theories of Savigny on the conflict of laws, and showed the applicability of Savigny's doctrines to questions which came before the English Courts. The influence of Mr. Westlake's work is traceable in whole lines of cases decided during the last forty-six years. |