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Published online by Cambridge University Press: 20 July 2015
What is the difference between “judge-made law” and the laws created by an elected assembly? The purpose of this paper is to investigate this question by addressing the differences and similarities between common law judgment and political judgment. I contend that there is something distinctive about common law judgment. This distinctive nature is the result of the different ground of validity of legal and political decisions. Legal judgment has a distinct ground of validity. This validity derives from two aspects of common law judgment: the impartiality of the decision-maker and the critical function built into common law reasoning itself. I articulate this view by drawing on Hannah Arendt’s lectures on Immanuel Kant’s Critique of Judgment, as well as on the work of theorists such as H.L.A. Hart, Ronald Dworkin and Joseph Raz. I also discuss Canadian and U.K. cases in which judges address their role and explain their views on precedent, the need for judgments to respond to the arguments of the parties, and the importance of law adapting to the constantly changing circumstances of the modern world.
I would like to thank Jennifer Nedelsky for her helpful comments on previous drafts. As well, I am grateful for the comments of the reviewers of CJLJ, which were of tremendous value during the process of revision.
1. Bentham, Jeremy was the first to call the common law “judge-made law” in A Comment on the Commentaries and A Fragment on Government ed. by Burns, J.H. & Hart, H.L.A. (London: The Athlone Press, 1977)Google Scholar. For instance, Bentham explains “… that what is called the Unwritten Law [by Blackstone] is made not by the people but by Judges: the substance of it by Judges solely: the ex Pression of it, either by Judges, or by Lawyers who hope to be so” (223).
2. John Hudson points out that in Bracton, more so than in Glanvill, it is evident that justice is dominated by the King, (The Formation of the English Common Law: Law and Society in England from the Norman Conquest to Magna Carta (London: Longman, 1996)Google Scholar. For instance, in the introduction to his treatise, Henry de Bracton explains that the common law, though unwritten, is law because of the authority added to it by the king: “[I]t will not be absurd to call English law leges, though they are unwritten, since whatever has been rightly decided and approved with the counsel and consent of the magnates and the general agreement of the res publica, the authority of the king or prince having first been added thereto, has the force of law” ( Bracton, Henry de, Bracton on the Laws and Customs of England, Treatise on the Law of England, vol. 2, trans. by Thorne, Samuel E. (Cambridge, MA: Belknap Press of Harvard University Press, 1968) at 19 Google Scholar [f. 1a]).
3. Another example of the identification of justice with the law of the sovereign can be found in property law. S.F.C. Milsom points out that one of changes that made the emergence of the common law possible was “the process by which the relationship between lord and tenant was subjected to the superior jurisdiction of royal courts and so became one of reciprocal private rights rather than of dependent allocation” ( Milsom, S.F.C., “The Nature of Blackstone’s Achievement” in Milsom, S.F.C. Studies in the History of the Common Law (London: The Hambledon Press, 1985) at 201 Google Scholar, originally published in (1981) 1 Oxford J. Legal Stud. 1). In other words, the common law was to some degree facilitated by the recognition of the power of judgment that resided in the sovereign. Frederick Pollock and Frederic William Maitland also point out that Henry II instituted a number of legal reforms (use of the inquest, the King’s prerogative procedure, as well as the institution of the various forms of assize (assize of novel disseisin, assize of mort d’ancestor, grand assize and assize of darrein presentment). In their view, with these reforms “one result … was to increase at a rapidly accelerating rate the amount of judicial business that was transacted in the king’s, name” (The History of English Law before Edward I, vol. 1, 2nd ed. (Cambridge: Cambridge University Press, 1923) at 153 Google Scholar).
4. Pollock and Maitland note that “throughout his reign, Henry took an active share in the work of justice” (ibid. at 159).
5. Holdsworth, W. S., A History of English Law, vol. 1, 3nd ed. (Boston, MA: Little, Brown and Co., 1922) at 35.Google Scholar Hudson also notes that with the Norman Conquest, there had been a considerable shift away from local courts towards the king’s courts. He points out that in Bracton, there is a very clear “ideology of royal-dominated justice” in which “all jurisdiction relating to the realm … was either exercised by the king himself or delegated by him” (Formation of the English Common La, supra note 2 at 231).
6. Holdsworth, ibid. at 194.
7. Bracton, for instance, demonstrates how the rule of law leads back to God through the sovereign: “The King must not be under man but under God and under the law, because law makes the king. Let him therefore bestow upon the law what the law bestows upon him, namely, rule and power. For there is no rex where will rules rather than lex. […] If [justice] is asked of [the king], since no writ runs against him there will [only] be opportunity for a petition, that he correct and amend his act; if he does not, it is punishment enough for him that he await God’s vengeance” (Bracton on the Laws and Customs of England, supra note 2, Treatise on the Law of England, vol. 2 at 33 [ f. 5b]). S.F.C. Milsom, in explicating a case from 1290, points out that “the actual question whether this defendant was liable would not have been for the men of Devon to decide: the refinements of law as well as the questions of fact were lost within the judgment of God” (“Law and Fact in Legal Development” in S.F.C. Milsom, supra note 3 at 181—originally published in (1967) 17 U.T.L.J. 1).
8. Bentham, Comment on the Commentaries, supra note 1 at 118.
9. Ibid. at 120.
10. Ibid. at 232.
11. In discussing Blackstone’s statement that a judge can depart from precedent if it is “evidently contrary to reason” (I Comm. 69-70), Bentham interprets this as meaning contrary to what the judge personally likes (ibid. at 198, 232).
12. Simpson, A.W.B., “The Common Law and Legal Theory” in Simpson, A.W.B., ed., Oxford Essays in Jurisprudence, 2nd series (Oxford: Clarendon Press, 1973) 77 at 81Google Scholar.
13. Ibid. at 82.
14. Ibid. at 82.
15. Posner, Richard A., Economic Analysis of Law, 2nd ed. (Boston, MA: Little Brown, 1977) at 416.Google Scholar
16. Hutchinson, Allan C., “Introduction” in Hutchinson, , ed., Critical Legal Studies (Totowa, NJ: Rowman and Littlefield, 1989) at 2.Google Scholar
17. Freeman, Jody, “The Private Role in Public Governance” (2000) 75 N.Y.U. Law Rev. 543 at 566 Google Scholar.
18. See Habermas, Jürge, The Theory of Communicative Action, trans. by McCarthy, Thomas (Boston, MA: Beacon Press, 1984)Google Scholar. Trans. of Theorie des kommunikativen Handelns (Frankfurt a.M.: Suhrkamp, 1982)Google Scholar.
19. Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. by Rehg, William (Cambridge, MA: MIT Press, 1996) at 224.Google Scholar Trans. of Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Frankfurt a.M.: Suhrkamp, 1992).Google Scholar
20. Habermas, Between Facts and Norms, supra note 19 at 445. In Habermas’s view, Kant tends more towards a liberal interpretation of rights than a republican one: “Rousseau and Kant pursued the goal of conceiving the notion of autonomy as unifying practical reason and sovereign will in such a way that the idea of human rights and the principle of popular sovereignty would mutually interpret one another. Nevertheless, these two authors also did not succeed in integrating the two concepts in an evenly balanced manner. On the whole, Kant suggests more of a liberal reading of political autonomy, Rousseau a republican reading” (ibid. at 100).
21. Fraser, Nancy, “What’s Critical about Critical Theory?” in Meehan, Johanna, ed., Feminists Read Habermas (New York: Routledge, 1995) at 47.Google Scholar
22. Hart, H.L.A. describes legal judgment similarly. For him, the virtues of legal judgment are “impartiality and neutrality in surveying the alternatives; consideration of the interest of all who will be affected; and a concern to deploy some acceptable general principle as a reasoned basis for decision” (The Concept of Law (Oxford: Oxford University Press, 1961) at 200 Google Scholar). What he leaves out is the reflexive self-critical nature of legal judgment, which uses the arguments of the affected parties to challenge the validity of the judge’s decision. Joseph Raz acknowledges the critical function in legal judgment when he identifies the uniqueness of the common law as its revisability. He says: “Judge-made law is constantly subject to potential (though modest) revision on all occasions on which its application is litigated (and it can be litigated in almost all cases to which the law applies)” (“Internal Legal Values: Law and Value in Adjudication” in Raz, Joseph, The Authority of the Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979)CrossRefGoogle Scholar, reprinted in 1983, at 195). In my view, this revisability indicates the importance of the self-critical aspect of legal judgment.
23. Seyla Benhabib notes that one of the values that Arendt saw in Kant’s theory was that it provided a procedural account, which she describes as “ … a procedure for ascertaining intersubjective validity in the public realm” ( “Judgment and the Moral Foundations of Politics in Hannah Arendt’s Thought” in Beiner, Ronald & Nedelsky, Jennifer, eds., Judgment, Imagination and Politics: Themes from Kant and Arendt (Lanham, NJ: Rowman and Littlefield, 2001) at 194.Google Scholar
24. Leora Y. Bilsky, “When Actor and Spectator Meet in the Courtroom: Reflections on Hannah Arendt’s Concept of Judgment” in Beiner & Nedelsky, eds., ibid. at 272.
25. Before embarking on an analysis of Arendt’s interpretation of Kant’s view of the nature of political judgment, and before I consider the relevance of this interpretation to legal judgment, it is important to note that Kant’s views on the law and its legitimacy are not set out in the Critique of Judgment, which deals with the validity of aesthetic judgment, but rather in the Metaphysics of Morals. Similarly, Hannah Arendt does not consider her theory of judgment to be applicable to legal judgment, which she considers to involve purely determinative rather than reflective judgment. Nevertheless, as I will explain later, I feel that the treatment of aesthetic judgment by Kant and of political judgment by Arendt can be helpful in understanding the grounds of validity of legal judgment.
26. Arendt, Hannah, Lectures on Kant’s Political Philosophy (Chicago, IL: University of Chicago Press, 1982) at 10.Google Scholar Delivered at the New School for Social Research, Fall, 1970.
27. Lectures on Kant, supra note 26 at 13.
28. Lectures on Kant, supra note 26 at 19, where Arendt points out that in answering the question “What ought I to do?” Kant “does not deal with action at all …. [Kant] … spelled out man’s basic ‘sociability’ and enumerated as elements of it communicability, the need of men to communicate, and publicity, the public freedom not just to think but to publish—the ‘freedom of the pen’; but he does not know either a faculty or a need for action.”
29. Arendt points out that none of the basic philosophical questions—What can I know? What ought I to do? What may I hope?—”even so much as mentions the condition of human plurality Lectures on Kant, supra note 26 at 20.
30. On the constitution of the political as that which requires urgent action, see Schmitt, Carl, The Concept of the Political, trans. by Schwab, George (New Brunswick, NJ: Rutgers University Press, 1976)Google Scholar. See also Chantal Mouffe’s commentary on Schmitt, in which she points out that “[t]he political always has to do with conflicts and antagonisms and cannot but be beyond liberal rationalism since it indicates the limits of any rational consensus and reveals that any consensus is based on acts of exclusion” (“Pluralism and Modern Democracy: Around Carl Schmitt” in Mouffe, Chantal, The Return of the Political (London: Verso, 1993) at 123 Google Scholar).
31. Heidegger points out that “Kant is the first and only one who traversed a stretch of the path toward investigating the dimension of temporality—or allowed himself to be driven there by the compelling force of the phenomena themselves” ( Heidegger, Martin, Being and Time, trans. by Stambaugh, Joan (Albany, NY: State University of New York Press, 1996) at 23.Google Scholar Translation of Zeit, Sein und. First appeared in Jahrbuch für Phänomenologie und phänomenologische Forschung, vol. VIII, 1927 Google Scholar. Page references are to the standard German edition published by Max Niemeyer Verlag). However, he goes on to point out how Kant did not go far enough in explicating the relationship between temporality, which structures our sensibility, and human existence: “ … Kant could never gain insight into the problem of temporality. Two things prevented his insight. On the one hand, the neglect of the question of being in general, and in connection with this, the lack of a thematic ontology of Da-sein—in Kantian terms, the lack of a preliminary ontological analytic of the subjectivity of the subject. Instead, Kant dogmatically adopted Descartes’ position—notwithstanding all his essential advances. […] As a consequence … the decisive connection between time and the “ I think” remained shrouded in complete obscurity. It did not even become a problem” (ibid. at 24).
32. Lectures on Kant, supra note 26 at 27.
33. Arendt claims that Kant’s critical philosophy stands against both dogmatic metaphysics and scepticism by “its modesty. It would say: ‘Perhaps men, though they have a notion, an idea, of truth for regulating their mental processes, are not capable, as finite beings, of the truth”. Lectures on Kant, supra note 26 at 33.
34. See Nedelsky, Jennifer, “Judgment, Diversity, and Relational Autonomy” in Beiner, & Nedelsky, , supra note 23 at 106.Google Scholar
35. Arendt states that “ … impartiality is obtained by taking the viewpoints of others into account; impartiality is not the result of some higher standpoint that would then actually settle the dispute by being altogether above the melée” (Lectures on Kant, supra note 26 at 42; see also 73). She then goes on to acknowledge the critical function of considering the viewpoints of others, which is to liberate us from prejudice (at 43).
36. Nedelsky points out that for Kant, judgments are not just ex Pressions of subjective preference. They make claims of validity on the whole community of judgment. Supra note 34 at 103-04.
37. Kant, Immanuel, Critique of Judgment, trans. by Pluhar, Werner (Indianapolis, IN: Hackett, 1987) at 59 (I, §8)Google Scholar.
38. Kant might not have put it quite this way. He says that a person can be considered as having a “broadened way of thinking if he overrides the private subjective conditions of his judgment, into which so many others are locked, as it were, and reflects on his own judgment from a universal standpoint (which he can determine only by transferring himself to the standpoint of others).” Critique of Judgment, supra note 37 at 161 (§ 40).
39. On the role of the imagination, see Beiner, Ronald, Political Judgment (Chicago, IL: University of Chicago Press, 1983) at 4, 104Google Scholar.
40. Lectures on Kant, supra note 26 at 67.
41. See Nedelsky, supra note 34 at 107-08.
42. Lectures on Kant, supra note 26 at 69, 73.
43. Beiner, supra note 39 at 6.
44. Beiner, supra note 39 at 82. In addition to the communitarian implications that I am emphasising, Nedelsky emphasises that the communicability of judgment is “premised on the underlying commonalities of our cognitive faculties,” i.e., on our hard-wiring. Supra note 34 at 107.
45. “[H]ow are these customs or maxims [of the common law] to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depository of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study; from the “viginti annorum lucubrationes,” which Fortescue mentions; and from being long personally accustomed to the judicial decisions of their predecessors” ( Blackstone, William, Commentaries on the Laws of England. A Facsimile of the First Edition of 1765-1769 (Chicago, IL: Chicago University Press) at I:69 Google Scholar). On the role of convention in common law reasoning, see Postema, Gerald J., “Philosophy of the Common Law” in Coleman, Jules, Shapiro, Scott & Himma, Kenneth Einar, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) at 588–622.Google Scholar
46. Simpson, Brian, “The Common Law and Legal Theory” in Twining, William, ed., Legal Theory and Common Law (Oxford: Basil Blackwell, 1986) at 14.Google Scholar
47. See also Simpson, A.W.B., who states that “the common law system is properly located as a customary system of law in this sense, that it consists of a body of practices observed and ideas received by a caste of lawyers …” (94)Google Scholar. “Formulations of the common law” he goes on to say, “are to be conceived of as similar to grammarians’ rules, which both describe linguistic practices and attempt to systematize and order them; such rules serve as guides to proper practice since the proper practice is in part the normal practice …” (94). “Normal” practice must, of course, be defined as the practice of the community of legal practitioners. See also his comments on how the legal community is formed and held together. “The Common Law and Legal Theory”, supra note 12 at 95.
48. Ibid. at 21.
49. 2nd ed. (Oxford: Clarendon Press, 1980).
50. Ibid. at 212.
51. Note that I say rational “men” because it has been argued by many feminists and critical theorists that the concept of rationality embodied in the natural law view of rationality has served, and in some cases continues to serve, to exclude women from the community of rational actors, and therefore from the community of natural law judgment.
52. Weinrib, Ernest, “Law as a Kantian Idea of Reason” (1987) 87 Colum. L. Rev. 472 at 504 Google Scholar.
53. This is what John Rawls points to as the priority of right over the good (see Political Liberalism (New York: Columbia University Press, 1993, 1996) at 173 Google ScholarPubMed). See also Weinrib, Ernest, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995) at 87.Google Scholar However, it should be pointed out that for Rawls, a way of life (modus vivendi) has the possibility of developing into an overlapping consensus (Political Liberalism at 208). It is thus possible to have law constitute a sphere of freedom for difference in which the maintenance of difference is much more robust than in Rawls’ approach. For such an approach, see Iris Young, Marion, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990)Google Scholar. On the separation of the state from religious morality, see also Mendelssohn, Moses, Jerusalem: Or on Religious Power and Judaism, trans. by Arkush, Allan (Hanover, NH: Brandeis University Press, 1983—originally published in 1783).Google Scholar
54. This is what Kant means when he says that freedom of choice requires that our actions be determined by reason, rather than by “sensible impulses.” As Kant points out, “That choice which can be determined by pure reason is called free choice. That which can be determined only by inclination (sensible impulse, stimulus) would be animal choice (arbitrium brutum). Human choice, however, is a choice that can indeed be affected but not determined by impulses, and is therefore of itself (apart from an acquired proficiency of reason) not pure but can still be determined to actions by pure will” ( Kant, Immanuel, The Metaphysics of Morals, trans. by Gregor, Mary (Cambridge: Cambridge University Press, 1996) at 13 [6:213]CrossRefGoogle Scholar).
55. This is what Kant calls freie Willkür, ibid. at 13 [6:213].
56. Ibid. at 13 [6:213].
57. Weinrib, supra note 52 at 484.
58. Williams, Susan H., “Feminist Legal Epistemology” (1993) 8 Berkeley Women’s L. J. 63 at 68-70Google Scholar; see also Scheppele, Kim Lane, “Just the Facts, Ma’am: Considering Considered Stories” (1992) 37 N. Y. Law School L. Rev. 123 at 169Google Scholar, where Scheppele points out that our laws of evidence, in preferring initial accounts over subsequent accounts, appear to function “as if perception were somehow free of organizing concepts and categories that are themselves social products.”
59. Williams, “Feminist Legal Epistemology,” supra note 58 at 70.
60. Ibid. at 70.
61. Here, I don’t mean “moral judgment” in the Kantian sense, but am referring to the subjective notion of “value” to which Justice Cardozo has pointed.
62. Williams, “Feminist Legal Epistemology,” supra note 58 at 71.
63. Posner, Economic Analysis of Law, supra note 15 at 410.
64. Ibid.
65. Lectures on Kant, supra note 26 at 75-76.
66. Arendt points this out in Lectures on Kant, supra note 26 at 73.
67. Nancy Fraser notes that Arendt does not adequately account for questions of subordination. This is because Arendt does not recognize that judges are located “vis-à-vis salient axes of sociocultural differentiation, including gender, ‘race,’ class, sexuality, and nationality” (“Communication, Transformation, and Consciousness-Raising” in Calhoun, Craig & McGowan, John, eds., Hannah Arendt and the Meaning of Politics (Minneapolis: University of Minnesota Press, 1997) at 174 Google Scholar). Nedelsky also points out that the “standard interpretation is that in the Critique of Judgment, as in the first two Critiques, Kant is talking about a transcendental realm, where there are no real conversations among actual people” (“Judgment, Diversity, and Relational Autonomy,” supra note 23 at 108). Nedelsky goes on to point out that in contrast to Kant, Arendt was interested in concrete, actual communities (ibid. at 109). However, as Fraser’s point makes clear, the question of how these concrete communities are constituted and who they exclude is an essential question from the perspective of justice and, I would argue, from the perspective of the legitimacy of judgment.
68. Nancy Fraser has made a similar critique of Arendt, arguing that for Arendt “judging … remains a monological process wherein one goes visiting in imagination, as opposed to in reality. One imagines oneself judging from various different perspectives instead of going out and talking to and listening to other people” (“Communication, Transformation, and Consciousness-Raising,” supra note 67 at 171). Some have suggested that Arendt’s interpretation of the enlarged mentality should be read in such a way as to take into account these concrete perspectives. Nedelsky, for instance, notes that “Arendt makes it clear that impartiality is not some stance above the fray, but the characteristic of judgments made by taking into account the perspectives of others in the judging community” (where the judging community is considered to be wider than simply the community of judges) (“Embodied Diversity and the Challenges to Law” in Beiner & Nedelsky, supra note 23 at 251). In opposition to this view, I tend to agree with Iris Marion Young that putting the judge in the position of imagining the concrete perspectives of others poses a certain danger: “When members of privileged groups imaginatively try to represent to themselves the perspective of members of op Pressed groups, too often those representations carry projections and fantasies through which the privileged reinforce a complementary image of themselves” (“Asymmetrical Reciprocity: On Moral Respect, Wonder, and Enlarged Thought” in Beiner & Nedelsky, supra note 23 at 214).
69. I do not mean by this that the appropriate community of judgment in the political forum is always the “world community” or the community of voters. Rather, I mean that it is more appropriate for legislators to consider interests more abstractly rather than concretely. In making a political decision about rent-control, we might consider the abstract interests of landlords and tenants, or the interests of poor and rich tenants. But in a case involving a landlord and a tenant, we are dealing with a particular claim of injustice arising out of a particular relationship between a landlord and a tenant, though admittedly one mediated through the more general relationship between landlords and tenants. However, in the legislative domain, the particular relationship between any given landlord and tenant is not the proper consideration for judgment, or rather, it is the particular relationship between every landlord and tenant that is relevant.
70. Nedelsky, for instance, underlines the importance of this question when she points out that an important aspect of impartiality is “attentiveness to difference” (“Embodied Diversity and the Challenges to Law,” supra note 68 at 251). Again, it could be possible to stretch the enlarged mentality to encompass consideration for the marginalised as I suggest. But in order to do this, Arendt’s theory would have to be supplemented with a way of choosing which specific perspectives should be included in the relevant application of the enlarged mentality. Fraser also points out that there would have to be some explanation of how to weigh competing or conflicting values. In her criticism of Lisa Disch’s explication of the process of Arendtian judgment as “visiting” (a visitor thinks with her own thoughts but “from the place of another”; see ‘“Please Sit Down, but Don’t Make Yourself at Home”: Arendtian “Visiting” and the Prefigurative Politics of Consciousness-Raising’, in Calhoun & McGowan, supra note 67) that this account “does not tell us whether or how visiting can lead me to change my own judgment. Suppose after judging some matter from my own standpoint, I go on and judge the same matter successively from some number of other relevant representative standpoints. Suppose, therefore, that by this process I accumulate in my imagination a plurality of different judgments concerning the matter. What happens next? How do I arrive at a resolution?” (“Communication and Consciousness-Raising,” supra note 67 at 172).
71. I.e., those that can have no validity outside of the perspective of the individual.
72. Gibbs, Robert, Why Ethics? Signs of Responsibilities (Princeton, NJ: Princeton University Press, 2000) at 249.Google Scholar Gibbs points out that for Marcel, “the third is a principle of independent reality, and … he will argue that all verification occurs in the third person” (ibid. at 250).
73. Young suggests that “[t]he perspective of those who maintain privilege under an unjust status quo does not have legitimacy in the same way as that of those who suffer the injustices” (“Asymmetrical Reciprocity,” supra note 68 at 213).
74. There is some basis to think that there is an identity between those with whom I can communicate and those who share my values. Admittedly within any linguistic community there will be differences of value. But it is also the case that I choose my community through the use of language. As Arendt points out “By communicating one’s feelings, one’s pleasures and disinterested delights, one tells one’s choices and one chooses one’s company” (Lectures on Kant, supra note 26 at 74). Through what I communicate, Arendt points out, I can, for instance, identify myself as an advocate of a Platonic versus a Pythagorean position. I thus constitute a community of commonality through language.
75. Beiner notes that judges will often find themselves judging against their community. This, he says, is part of the “tragic” conflict between the judge and her community. Political Judgment, supra note 39 at 157.
76. Raz, “Law and Value in Adjudication,” supra note 22 at 199-200.
77. Of course, for an appeal court, this may not be entirely the case, since an appeal court has a greater freedom to address a broad legal issue that transcends the parties’ dispute. But the decision can rarely be so wholly divorced from the facts so as to reform a whole area of law. Indeed, Lord Atkin gave the following warning in Donoghue v. Stevenson, [1932] AC 562 (HL): “ … in the branch of the law which deals with civil wrongs, dependent in England at any rate entirely upon the application by judges of general principles also formulated by judges, it is of particular importance to guard against the danger of stating propositions of law in wider terms than is necessary lest essential factors be omitted in the wide survey and the inherent adaptability of English law be unduly restricted” (at 583).
78. Raz, “Law and Value in Adjudication,” supra note 22 at 200.
79. Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977) at 115.Google Scholar
80. Simpson, supra note 12 at 85-86.
81. Cross, Rupert & Harris, J.W., Precedent in English Law (Oxford: Clarendon Press, 1991) at 199.Google Scholar
82. Simpson, Brian, in “The Common Law and Legal Theory,”Google Scholar points out that the common law is, like grammar, both descriptive of what has been, prescriptive as to what ought to be, but revisable as the language the rules describe change: “Formulations of the common law are to be conceived of as similar to grammarians’ rules, which both describe linguistic practices and attempt to systematize and order them. Such rules are not simply descriptive in function—they serve also as guides to proper practice, since the proper practice is in part the normal practice. Formulations of such rules are inherently corrigible, for it is always possible that they may be improved upon as accurate statements, or require modification as what they describe changes” (supra note 46 at 21).
83. [1970] AC 1004 at 1140 (HL).
84. The first two steps are sufficient for disposing of “easy cases.” See MacCormick’s, Neil analysis of “easy cases” in Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978; rev. ed., 1993), in chs. 2 and 3.Google Scholar
85. In this case, the principle that the plaintiff sought to extend to the novel facts of the case was the duty of care as articulated in Donoghue v. Stevenson, in which Lord Atkin described the type of relations giving rise to a duty of care as those in which the parties harmed “are so closely and directly affected by my act that I ought reasonably to have them in contemplation … when I am directing my mind to the acts or omissions which are called in question” (quoted in Dorset Yacht, supra note 83 at 1060). Lord Diplock extended this principle to the case before him. He held that a state official must use reasonable care in ensuring that wards of the state do not escape from his custody and cause damage to the property of a person which the official could reasonably have foreseen would be in the vicinity of the detention centre. In other words, he found that in the present case, there was sufficient proximity between the negligent act of the state official and the property damaged so as to engage the principle in Donoghue v. Stevenson that a duty of care is owed to one’s neighbours, i.e., those who are “so closely and directly affected by my act that I ought reasonably to have them in contemplation ….” For a more thorough examination of the method employed by Lord Diplock, see Weinrib, Ernest J., “The Disintegration of Duty” in Madden, M. Stuart, ed., Exploring Tort Law (Cambridge: Cambridge University Press) 142 Google Scholar, in which he describes this method as follows: “ … because the process of judgment is supposed to bring together the general conception of duty and the determination of a particular duty, it operates simultaneously from both ends. On the one hand, it attends to the fact situation at hand and to the history of judicial determinations in analogous fact situations. On the other hand, it elucidates the relevance of particular facts and similarities by reference to the general conception of duty that Lord Atkin articulated” (at 181-82).
86. Dorset Yacht, supra note 83 at 1059.
87. Weinrib, “Law as a Kantian Idea of Reason”, supra note 52 at 481.
88. Dorset Yacht, supra note 83 at 1059.
89. Cardozo, Benjamin N., The Nature of the Judicial Process (New Haven, CT: Yale University Press, 1921; reprinted, 1991).Google Scholar
90. Martha Nussbaum points out that one of the drawbacks of the traditional, principled approach to judicial decision-making is that it removes an important aspect of subjectivity—that of choice. As she points out, “[i]t must be attractive to judges to adopt concepts of the judicial role as constrained and of legal doctrine as compelling the results; it is a view that relieves individuals of the responsibility for their actions. But this view submerges the possibilities for choice, even given constraint. It treats answers to controverted questions as preordained rather than mutable and chosen” ( Nussbaum, Martha, “Identities” (1991) 3 Yale J. L. & Human. 97 at 129)Google Scholar.
91. Gény, François, “Méthode d’Interprétation et Sources en droit privé positif” (Paris: F. Pichon et Durand-Auziasvol, 1919), vol. II, at 93, sec. 159; vol. II, at 142, sec. 168Google Scholar.
92. Cardozo, supra note 89 at 173-74.
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94. [1991] 3 S.C.R 654.
95. Ibid. at p. 666. See also the speech of Nicholls, Lord of Birkenhead in National Westminster Bank plc v. Spectrum Plus Limited and others, [2005] UKHL 41 at para. 32 Google Scholar; and the speech of Goff, Lord of Chieveley in Kleinwort Benson Ltd. v. Lincoln City Council [1999] 2 AC 349 at 377Google Scholar.
96. [1965] A.C. 1001.
97. Ibid. at 1021. See also Hill v. Church of Scientology of Toronto [1995] 2 S.C.R. 1130 at paras. 91-92.
98. [1991] 2 S.CR. 577.
99. Ibid. at 622.
100. Salituro, supra note 94 at 668-69.
101. David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co., (2005) 76 O.R. (3d) 161.Google ScholarPubMed
102. (2001) 54 O.R. (3d) 704.
103. Polowin, supra note 101 at para. 119. On the importance of certainty, see the speech of Lord Hope of Craighead, in National Westminster Bank, supra note 95 at para. 63.
104. Ibid. at para. 121.
105. These factors are ex Pressed in R. v. Bernard [1988] 2 S.C.R. 833; R. v. Chaulk [1990] 3 S.C.R. 1303 and R. v. Salituro, supra note 94.
106. Polowin, supra note 101 at para. 143.
107. National Westminster Bank, supra note 95 at para. 40.
108. See also R (Bidar) v. Ealing London Borough Council, Case C-209/03, [2005] 2 WLR 1078, 112, paras. 67-69Google Scholar, in which the European Court of Justice explained that prospective overruling could be possible in those cases in which parties have in good faith relied on legal rules that they had considered to be validly in force.
109. [2000] 1 AC 119.
110. There are, of course, exceptions to this general rule in which a point of law is decided in the abstract because it is of general importance, although it might not affect the outcome of the case. An example is Attorney General for Jersey v. Holley [2005] UKPC 23, in which the Privy Council resolved a question relating to the defence of provocation although it did not affect the conviction or sentence of the accused. References of legal questions by attorneys-general to provincial courts of appeal and to the Supreme Court also appear to be rulings in the abstract, although factual examples or evidence of the practical consequences of the law in question are usually required in order to demonstrate the justice or injustice of a ruling.
111. See National Westminster Bank, supra note 95 at para. 34, where Lord Nicholls of Birkenhead points out that though many previous decisions are overruled on the basis that the previous rule was wrong, many cases also represent responses to “changes in social conditions and expectations.” See also the speech of Lord Scott of Foscote at para. 124.