Wednesday, October 28, 2015
As someone who tries to resist the notion (at least in its cruder formulations) that common law is "made" by judges based on "policy" considerations, I found much to appreciate in John Finnis's wide-ranging lecture "Judicial Power: Past, Present and Future" delivered last week at Gray's Inn Hall. To wit:
To state (like Bacon and countless much longer-serving judges) that the common law is declared rather than made is no mere “fairy-tale” unless the statement is mistakenly asserted or heard as a description of the history of the common law. It is not a description or prediction, fictionalising that history by overlooking the many changes made by the courts, but a statement of judicial responsibility: to identify the rights of the contending parties now by identifying what were, in law, the rights and wrongs, or validity or invalidity, of their actions and transactions when entered upon and done. There are cases when a court, especially one that is hierarchically supreme and thus not bound to follow the rulings of higher courts, can judge it has the duty now to depart from an interpretation or view of the part of our law in dispute between the parties because, though that interpretation or view has been judicially approved and is what legal advisers would now and previously convey to their clients, it is nonetheless out of line with principles, policies and standards acknowledged (now, and when the dispute arose) in comparable parts of our law–so out of line that it ought now to be declared to have been a mistaken view, and set aside in favour of a rule that, though new in relation to the subject-matter and area of law directly in issue between the parties, is nevertheless not a novelty or act of legislation (taking our law as a whole), and can fairly be applied to the parties and dispute before the court.