учебный год 2023 / Judicial law making

perhaps a lingering love for the role of fiction as a major agent in legal evolution, is responsible for the survival of an increasingly untenable doctrine,4 which was, moreover, never adopted by some of the greatest of British judges from Holt, Mansfield and Blackburn to Wright and Atkin.

The House of Lords itself has now buried the remnants of the

doctrine. In three recent judgments the House has, in quick succession, asserted its lawmaking function, not in areas of marginal interpretation but of basic impact. In Shaw's case, the House of Lords asserted its power to supplement and, by implication, to depart from the statutory regulation of criminal law, through the revival of a common law offence called " conspiracy to corrupt public morals." 5 In Hedley Byrne v. Heller 6 the House, not content with the dismissal of an action for damages because the defendant had excluded legal responsibility, asserted, in a series of elaborate per curiam statements, a new legal principle of great financial importance, i.e., the responsibility of those who negligently make statements on financial soundness expected to be used by third parties.7 And in Rookes v. Barnard 8 the House revived an all but forgotten tort of intimidation, and resurrected the tort of conspiracy for economic disputes which had been all but buried in CrofterHandwoven Harris Tweed Co. v. Veitch.9 By establishing

4 Among recent judicial pronouncements in favour of the doctrine are those of Lord Jowitt, at the Australian Law Convention of 1951: " Please do not get

yourself into the frame of mind of entrusting to the judges the working out of a whole new set of principles which does accord with the requirements of

is not the more attractive because it is dignified by the name of reform. Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignore our first duty, which is to administer justice according to law, the law which is established for us by Act of Parliament or the binding authority of precedent. The law is developed by the application of old principles to new circumstances. Therein lies its genius. Its reform by the abrogation of these principles is the task not of the courts of law but of Parliament." Scruttons v. Midland Silicones [1962] A.C. 446 at pp. 467-468.

It is not without irony that Lord Jowitt's remark was made in criticism of the attempt by Denning L.J. (as he then was) to introduce the principle of liability for negligently in Candler v. Crane,

Christmas d Co [1951] 2 K.B. 164, a dissent that has now been adopted by the House of Lords in Hedley Byrne v. Heller [1964] A.C. 465, while Lord

Simonds' refusal to contemplate a role of the courts in the adjustment of civil

liabilities contrasts with the same learned lord's ringing assertion of the sweeping judicial power in the field of criminal law, made in Shaw v. D.P.P.

[1962] A.C. 220.

5This assertion has opened up one of the most stirring controversies of recent times on the function of the law in general, and of the courts in particular, as

legal responsibility for damages in the case of a typical union action instigated by a union organiser and two fellow employees designed to coerce the employer (BOAC) into certain behaviour, the House profoundly modified the legal and economic status of trade unions, and neutralised the basic provisions of the Trade Disputes Act of 1906.10 It would strain credulity to assert that such sweeping modifications of both common and statutory law are merely " declaratory " statements, or refinements of the existing law.1

It is therefore time to turn from the stale controversy over whether judges make law to the much more complex and contro- versial question of the limits of judicial lawmaking. The continuing

validity and importance of the basic separation of functions, in a modern legal system, between the legislative, administrative and judicial branches of government is no less important than the

responsible for the formulation of general principles of conduct

which are of general, publicly promulgated and prospective appli- cability to a given community for an indeterminate number of situations; administrators must apply such general principles to more specific situations and often to specific groups within the

the prescriptions of legislators, or the generalised principles deduced from a series of precedents, to individual disputes. Such a separa- tion of functions is not confined to the democratic doctrine of separa- tion of powers; it is part of the essential structure of any developed legal system.12 In a democratic society, the processes of administration, legislation and adjudication are more clearly distinct than in a totalitarian society, where legislative and administrative proce- dures tend to merge and the judges are expected to be the executants of the political ideology of the government. But even in such societies, the three functions remain generally separate.

10For a full analysis see Wedderbur, " Intimidation and the Right to Strike," (1964) 27 M.L.R. 257. The decision was, in turn, partly neutralised by the Trade Disputes Act 1965, which provides, inter alia, that an action against a

trade union . . . in respect of any " tortious act alleged to have been com-

requirements of generality, promulgation and prospective operation, which constitute the first three of his eight requirements of the " inner morality"

of law (Fuller, The Morality of Law (1964), p. 41 et seq.).

It is therefore a matter of both theoretical and practical impor- tance to inquire into the limits of judicial lawmaking. Only when we have admitted that judges do make law, does it become necessary and possible to distinguish the characteristic aspects of judicial

lawmaking from those of legislative lawmaking.

LEGISLATIVE INACTION AND JUDICIAL REFORM

The dilemma of the courts in deciding whether to reform the

law, in the face of legislative inaction, has recently been succinctly formulated by a distinguished American judge 13:

" It is now a commonplace that courts, not only of common law jurisdictions but also those which have codified statutory

law as their base, participate in the lawmaking process. The commonplace, for which the Holmeses and the Cardozos had

to blaze a trail in the judicial realm, assumes the rightness of

courts in making interstitial law, filling gaps in the statutory and decisional rules, and at a snail-like pace giving some forward movement to the developing law. Any law creation more drastic than this is often said and thought to be an invalid encroachment on the legislative branch....

It is the failure or inability of the legislature to act where nevertheless, a desperate need for creative law- making . . . Whether it be deadlock or a refusal to face up

to legislative or political hazards, there is often a deferral or refusal to act. Sometimes the reason is strongly based on the desire to permit the difficulties of the problem to be resolved

judicially by an evolutionary case-by-case approach in the decisional process, at least for a time, until the question is ripe

for legislative handling. Sometimes the reason is only the view that the common law solution is best because of nice

technical distinctions and because the need for harmony with other rules of law is deemed paramount.... These are some of the reasons which make for a strong lawmaking function in the courts, far beyond the interstitial and the gap-filling. These reasons, however, do not mean that it is all to the good and that courts are best equipped to perform the function. On the contrary, there are grave limiting factors: the limitations

of judicial procedure, political dependence upon other branches of government, and the isolated nature of the judicial office."

It is a difficult question for a court to decide whether, in the face of continued legislative inaction, it should intervene to change a manifestly unjust and outdated legal principle, sometimes at the

risk of stinging the legislator into retaliatory action, or remain

passive. Certainly the answer cannot be given in terms of subjectmatter. The long overdue reform of the principles of liability of

occupiers to visitors could easily have been carried out by the courts, by interpretations far less sweeping than those the House of Lords

13Charles D. Breitel, in "The Lawmakers," The Twenty-Second Annual Benjamin N. Cardozo Lecture (1965), at pp. 32, 38-39.

used in cases like Bonsor v. Musicians' Union 4 or Rookes v. Barnard.15 In the end the law was changed by legislative reform."

Such questions as the joint liability of tortfeasors, the immunity of public authorities (in the United States) from liability for negli- gence, or the rights of a married woman to occupancy of a matrimonial home could be and have been the subject of judicial as well as legislative reforms. In 1959 the Supreme Court of Illinois decided that it was time to do away with the absurd rule of immunity of local authorities from liability for negligence, in a typical case where a bus driver employed by a local school authority had negligently injured children riding to school in the bus.1' But although the court applied its new doctrine only prospectively,18 the Illinois legislature was stirred into action and restored the old doctrine. The Supreme Court of California, which, in 1961, went

even further by overruling the old immunity doctrine retroactively,l9 was somewhat luckier, in provoking a comprehensive study of the problem and an eventual legislative reform in 1968. There are those who would solve the dilemma by generally prescribing judicial inaction in the face of legislative inaction. This view was propounded by Professor Henry M. Hart in a symposium on " Courts and Lawmaking " held in 1958 at the Columbia Law School 20:

" The Constitution of the United States and each of the

state constitutions prescribe the ways in which bills shall become law. Failing to enact a bill is not one of these ways, even when a bill has been introduced and voted down. A

fortiori, the failure to act is not an authorized way of making law when no bill on the subject was ever introduced in the

first place. ... A legislature is a deliberative body. It is an instrument for arriving at a consensus, not an instrument for

recording a consensus previously arrived at, as if by some mysterious emanation from the electorate. To arrive at a consensus, the legislature follows an elaborate procedure of

investigation and consideration eventuating in the approval of a particular form of words as law. For the courts to treat the legislature as making law by any other means is to treat this procedure and this agreement upon a particular form of words as mere froufrou-without any real function."

But two such eminent and experienced judges as Chief Justice Traynor of the Supreme Court of California and Justice Breitel of

16Occupiers' Liability Act 1957.

17Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E. 2d 89 (1959). It should be noted that in the United States, the discredited doctrine of the sovereign's immunity from tort liability has, in

application of the ancient decision of Russell v. Men of Devon (1788) 2 T.R. 667, been carried to much greater lengths than in England, where statutory

public authorities, including school boards, have long been held subject to suit in tort.

18 On the meaning of the principle of " prospective overruling," see below, p. 602. 19 Muskopf v. Corning Hospital District, 55 Cal. 2d 211, 359 P. 2d 457 (1961). 20 Paulsen (ed.), Legal Institutions

the Appellate Division of the Supreme Court of New York are far less categorical:

" Legislative inaction, total or partial, in a troubled area, may indicate a rejection of proposals; or it may indicate a warrant to the courts to exercise the traditional common law

examination of legislative purpose by investigation of sur- rounding circumstances and the available legislative history." 21

" However timely an overruling seems, a judge may still be deterred from undertaking it if there are cogent reasons for leaving the task to the legislature. There are no ready lists of such reasons, and a judge has no absolute standards for testing his own. It is for him nevertheless to articulate the

uneasiness he may feel about judicial liquidation of a precedent, however ripe it appears for displacement in the time and circumstances of the case that has brought it into question." 22

CRITERIA FOR LIMITS OF JUDICIAL REFORM

While the general proposition that, in the face of legislative inaction, the courts should also remain passive has proved unacceptable to courts of many countries, one observation in Professor Henry Hart's

critique deserves further attention: " To arrive at a consensus, the legislature follows an elaborate procedure of investigation and consideration eventuating in the approval of a particular form of words as law." The nature of the judicial function imposes certain limits upon judicial reform. A few years ago, the present writer sought to formulate the basic limitation of judicial reform as follows 23:

" Courts can and indeed are called upon to adjust rights and liabilities in accordance with changing canons of public policy. But because they develop the law on a case-by-case

basis they can not as can the legislature, undertake the estab- lishment of a new legal institution, ' an elaborate procedure of

investigation and consideration eventuating in the approval of a particular form of words as law.' "

The following were among the examples given by way of illustra- tion: the West German Constitution of 1949 abolished the statutory matrimonial property regime of the German Civil Code as incompatible with the new principle of equality of the sexes. In the expectation that a new statute would by then have been passed, the Constitution decreed that the old law should cease to be opera-

But for several years after that date the

(1963), pp. 101, 119.

German legislature failed to provide a new matrimonial property law. Faced with this situation, the Supreme Court of the Federal

Republic 24 applied, as the nearest equivalent to equality, the regime of separation of property which under the German Civil Code was to apply where the statutory regime had been excluded and no other had been agreed upon. But the institutional reform, which involved a good many complex arrangements on powers, accounting or liquidation, could only be effected by the legislature. This was finally done by the new Matrimonial Property Act of 1957. Again, courts can interpret the word " children " in wills so as to reflect contemporary views which no longer penalise illegitimate children. But they cannot establish new institutions such as adop-

tion or legitimation. By contrast, it was suggested that courts were perfectly well equipped to abolish outdated distinctions such as those between " governmental " and " proprietary " functions, between " invitees " and " licensees," or between " administra-

tive " and " medical " acts as determining the liability or immunity

of a municipal authority, an occupier or a hospital.25 On the other hand, it was suggested that the substitution of comparative for contributory negligence, however desirable and justified, could not easily be introduced by the courts because " the effective carriers of liability are, in the great majority of cases, the insurance com- panies, and not the nominal parties. Judicial reform would therefore affect the whole insurance rate structure." 26

The view that the kind of law-reforming task which courts cannot properly undertake is that which requires basic institutional adjust- ments is supported not only by Professor Henry Hart's formulation

of " an elaborate procedure of investigation

eventuating in the approval of a particular form of words as law,27 but also by Chief Justice Traynor, who, like Justice Breitel, is convinced of the need for major and continuous participation of courts in the lawmaking and law-reforming process, but agrees with

the present writer " that the legislature is pre-eminently qualified to cope with such problems as contributory negligence. There are many such problems whose resolution entails extensive study or detailed regulation or substantial administration that a court cannot appropriately or effectively undertake." 28

Yet, the distinction between institutional change and the adjust- ment of liabilities, as a general criterion for what it is proper and improper for a court to do, is too simple. Not only are there border-

24 Civil Decisions (BGZ) Vol. 11, Append. p. 35 (1953).

25 See, for examplesof judicial reformin these fields, the decisionof the Court of Appealin Cassidyv. Ministerof Health [1951] 2 K.B. 343, and in Razzel v. Snowball [1954] 3 All E.R. 429; and the Americandecisions in Bing v.

Thunig, 2 N.Y. 2d 656, 163 N.Y.S. 2d 3 (1957), and Collopyv. NewarkEye and Ear Infirmary,27 N.J. 29, 141 A. 2d 276 (1958).

26Friedmann,op. cit., n. 23 at p. 841.

27See above, p. 597.

28Traynor, op. cit., n. 22 at p. 233.

600 THE MODERN LAW REVIEW VOL. 29

line cases, like Bendall v. McWhirter, where the Court of Appeal attempted to create a new quasi in rem status for the deserted wife, by constituting for her benefit an " equitable right " or at least an " irrevocable licence " to occupy a matrimonial home despite

principles and work out the necessary institutional adjustments. This is more likely to occur in federal jurisdictions where a Supreme Court has the ultimate power of constitutional interpretation and thus a scope for lawmaking unrivalled in other types of legal

systems. The interpretation of " due process " or " equality " or " freedom of commerce " clauses means in effect a power of almost

unlimited sweep to lay down principles of legislation and administration, in accordance with changing ideas of public policy. Two famous recent decisions of the Supreme Court of the United States illustrate the magnitude of such lawmaking-and institution-

creating-power.

In Brown v. Board of Education 30-a decision that initiated

a period of almost unprecedented legal and social change in the United States-the Supreme Court held the racial school segregation system prevailing in most of the Southern states to be unconstitutional, thus overruling its own earlier doctrine that " separate but equal " educational facilities were compatible with the Constitution." 31 This decision set in motion a major reorganisation of school systems-far from completed-in which the Federal District Courts, enjoined by the Supreme Court to supervise and scrutinise the legislative and administrative changes, act as judicial executants of the Supreme Court decision. Although the court here did not " approve a particular form of words as law," it clearly set a new institutional pattern, leaving it to state legislatures and administrators to work out the details under the supervision of subordinate

courts.

In Baker v. Carr,32the Supreme Court went perhaps even further in the ordering of new institutional arrangements. Here the court considered a suit by a group of Tennesseans alleging that they had been deprived of their federal constitutional rights by legislation classifying voters with respect to representation in the General Assembly. The court held these allegations to be justiciable, and a denial of the equal protection guaranteed by the Fourteenth

The decision was overruled by the House of Lords in National Provincial Bank v. Ainsworth [1965] 2 All E.R. 472.

30347 U.S. 483 (1954).

31Plessy v. Ferguson, 163 U.S. 537 (1897).

82369 U.S. 186 (1962).