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Unformatted text preview: ects of losses. 279 Policy and the Declarative Role of the Bench
Examination of public policy draws into question the declaratory role of the bench and
the criticism that judges make law according to a preconceived individual social
perspective. "There was a time when it was thought almost indecent to suggest that judges make law - they only declare it."30 Hale, in the 17th century, stated that courts
cannot "make a law properly so-called, for that only the King and Parliament can do".31
In 1892, Lord Esher had utterly denied that judges make law. "There is in fact no such thing as judge-made law, for the judges do not make the law though they frequently have
to apply existing law to circumstances as to which it has not previously been
11 authoritatively laid d o w n that such l aw is applicable." This portrayal of the declaratory role of the b ench masks the law-making role of judges
which has been more overtly recognised in recent times. No casual modern observer to
legal history could possibly view cases such as Donoghue v Stevenson or Overseas
Tankships v Mort Dock & Engineering Co. Ltd. (The Wagon Mound) (No. I)35 and not be
impressed with the level of judicial law-making. Despite Lord Esher's denial above, as early as 1875 Mellish LJ had taunted his colleagues by declaring that: "The whole of th
rules of equity and nine-tenths of the common law have in fact been made by judges."
Indeed, it may be questionable whether there would be any modern passionate adherents 30 Lord Reid 1976, "The Judge as L a w Maker", Journal ofSociety of Public Teachers of Law, p. 22.
Hale, M . 1713, History of the Common
Law of England, online edition available at:
http://socserv2.socsci!mcmaster.ca/~econ/ugcm/3113/hale/common chapter IV at point 3.
Willis v Baddeley  2 Q.B. 324 at 326; Cross, R. and Harris, W . 1991, Precedent in English Law,
4th edition, Oxford, Clarendon Press, p. 28.
C f Lord Reid (1976); M cHugh, M . Hon Justice "The Law-making Function of the Judicial Process , 62
A.L.J. 15 concluded in 62 A.L.J. 116 ; Devlin 1976, "Judges and L awmakers" (1976) 39 M. L. R. 1; M ason,
A . Chief Justice Sir "Changing L a w in a Changing Society"  67 A.L.J. 568.
 A .C. 562.
 A .C. 388.
Allen v Jackson (1875) 1 C h. D . 399 at 405 per Mellish LJ.
31 280 to the declaratory theory of the b ench w h e n it is said by the [former] Chief Justice o f the
High Court of Australia that [j]ust as legislative reforms are now fashioned to meet Australian needs, so Australian cour
developing and refining general principles of judge-made law in their o wn way . . In recent years
the High Court has brought about significant developments in legal principle, so much so that i
can n ow be said that there is an emerging Australian common law.37 Remarks such as these question whether or not the declaratory theory of the bench can
still be said to be alive.38 If the declaratory theory be dead, the recognition that judges
make law through the cases raises interesting questions. The progression from descriptive
(Do judges make law?) to normative (Should judges make law?) immediately brings to
light the underlying questions regarding the metric from which the judge-made law
stems, and the prevailing ethics reflected in the decisions which are made. This may not
have been an issue in the early formation of the common law, for the overriding social
ethic originated from the Catholic Church's widespread teaching and monopoly of literacy (see Chapter Two). In a philosophically competitive, pluralistic society the use of
an extra-legal social ethic in determining 'justice', which may represent at best a
fractional proportion of the surrounding community, becomes a far more contentious
issue. If the surrounding social environment does not have a prevailing social ethic upon
which judges draw to settle cases in an ethically consistent fashion, the competing social
ethics reflected in the myriad of decisions in modern society undermines the principle
that the law should be predictable. 37 M ason CJ.  67 A.L.J. 568 at 570.
M ason A. 1987, "Future Direction in Australian Law", (1987) 13 Monash University Law Review 149;
Toohey, L.J. 1990, "Towards an Australian C o m m o n Law", (1990) 6 Australian Bar Review 185.
38 281 Predictability
Courts uphold the policy that the law should be predictable. Many writers on this aspect
of public policy seem to assume that predictability is good, for to take the alternate
position would be contrary to an orderly administration of the law.39 This policy was
recently reiterated by the High Court of Australia in Perre v Apand Pty. Ltd.40 (1999)
where the court held:
Law is one of the most important means by which a Western society remains socially cohesive
while encouraging the autonomy of its individual members and the achieving of its social,
political and economic goals. But the effectiveness of law as a social instrument is seriously
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