This is a summary of Margaret Davies, Asking the Law Question (Thomson Reuters, 2002) ch 2 (‘Classical Common Law Theory’).

Introduction

Davies begins by drawing readers’ attention to the notion that systems may appear illogical purely because we impose upon them our understanding of what is logical. The system is not illogical, but ‘in being faced with a system which is so foreign to our way of thinking, we are confronted with the limitations of our own thought.’1

It is not just that different systems have different rules, doctrines, or principles, or even totally different systems of classifying substantive law: there are ways of understanding law which simply cannot be explained in the terms of modern Western legal theory.2

Davies illustrates this by quoting an article by Irene Watson relating to indigenous Australian concepts of law:

Our voices were once heard in light of the law. The law transcends all things, guiding us in the tradition of living a good life, that is, a life that is sustainable and one which enables our grand-children yet to be born to also experience a good life on earth. The law is who we are; we are also the law. We carry it in our lives. The law is everywhere: we breathe it, we eat it, we sing it, we live it.3

In Western tradition, law is generally (following positivist thought) seen as a human creation rather than part of the physical world, writes Davies.4 She declines to discuss non-Western concepts of law (‘it would be presumptuous’) but mentions them ‘so that we are aware that theories of what law really is, especially those which include descriptions of non-Western systems as deficient systems of law, are an attempt to subordinate every system which doesn’t look like our own to the ideological supremacy of so-called “developed” law.’ This, she writes, ‘is nothing more than a philosophical imperialism’.5

Davies establishes the scope of her chapter. ‘Common law theory’ is not modern theory about common law, or theory emanating from such jurisdictions. It refers to the ‘conception of law … held by those eminent British men of the 16th to 18th centuries, who are still revered by some as the Father of modern common law — in particular Edward Coke, William Blackstone, and Mathew Hale. Parenthetically, Davies apologises for her sounding ‘a little irreverent’, and explains that it is because ‘(a) whatever we end up with, a Constitution or a whole system of law, and in spite of whether it is any good, we sometimes exhibit a blind tendency to revere our Fathers; [and] (b) in this instance our Fathers fathered not only the common law system but also certain unfortunate but resistant features of it.’6

Davies explains that there seems to have been a ‘very significant shift in the Anglo-American jurisprudential paradigm towards the end of the 18th century.’7 She suggests that the various modern perspectives, regardless of how radical or critical as they may appear, all tend to reinforce or ‘take as point of departure’ the positivist view of law.8 They ‘presume that law consists of rules and principles laid down in an authoritative manner by an institution with law-making authority … and that it is therefore conceptually separable from morality, custom, religion, and social norm.’ But she is quick to point out that this is a ‘comparatively recent’ approach to law.

Law and Declaration

Common Law theory arose, in part, in response to the threat of centralized power exercised by those who proposed to make law guided by nothing but their own assessment of the demands of justice, expediency, and the common good. … Common Law theory reasserted the medieval idea that law is not something made either by king, Parliament, or judges, but rather is the expression of a deeper reality which is merely discovered and publicly declared by them.9

The distinction between regarding law as created by human beings and regarding it as existing separately from deliberate human intervention is not always easy to draw.10 Classical common law thinkers did not regard common or customary law as being laid down in the same way as statutes: judges did not make the common law, ‘they declared it.’11 Common law ‘was not regarded as an ideal existing somewhere … separate from human agency, nor was it reducible to any specific political or historical origin.’12

In his Commentaries on the Laws of England, William Blackstone describes judges as the ‘living oracles’ of the law, who ‘do not decide what the law is, nor … exercise any personal judgment in determining what the proper principle to apply to a case is.’13 In Blackstone’s view, judicial pronouncements that misrepresent the law do not create bad laws; they simply are not laws.

According to this view … the common law is authoritatively evidenced, but not determined by, judicial decisions. The law is therefore different from mere decisions: this feature of common law thought led Jeremy Bentham in the early 19th century to characterise the common law itself as a fiction, and as non-existent.14

William Blackstone, Commentaries on the Laws of England

Blackstone took established customs and established rules and maxims to be the same thing: the authority of maxims, he argued, rests upon general reception and usage. A maxim can only be a common law rule if it can be shown it has always been the custom to observe it. Judges 'in the several courts of justice' reveal these maxims and determine their validity.

The knowledge of the law held by judges is derived from experience and study, especially of previous judicial decisions. Blackstone holds it to be an establish rule that judges abide by precedents to 'keep the scale of justice even and steady, and not liable to waver with every new judge's opinion'. While judges are bound to maintain and expound the law as it exists before them, this rule permits exception where the former determination is 'most evidently contrary to reason; much more if it be clearly contrary to the divine law.'

According to Davies, Blackstone’s ideas ‘are still relied upon by judges who see their role as impartially applying and where appropriate extending settled principles of law, but not as doing anything which diverges sufficiently from the past to amount to an act of judicial creation.’15 In SGIC v Trigwell Barwick CJ ‘echoed, two centuries later, Blackstone’s views about the relationship betwee the law and the judicial process:’16

Where the law has been declared by a court of high authority, this court, if it agrees that that declaration was correct when made, cannot alter the common law because the court may think that changes in society make or tend to make that declaration of the common law inappropriate to the times … It can, of course, decide that that declaration was erroneous when made and itself declare what the common law ought properly be held to be.17

Davies briefly outlines the tensions that arise as a result of viewing judicial functions as solely impartial and objective, while political and inventive actions are taken by Parliament: ‘It is no longer radical to claim that judges “make” law, even though there is still widespread community and political criticism of any legal decision which is perceived to extend too far the boundaries of established legal principle.’18

Shortly prior to when Davies was writing, ‘some judges [gave] new life to the declaratory theory.’19 Godden suggested that ‘judicial activism’ in the native title cases (Wik and Mabo) was not reinvention of the law but a fresh declaration of it that better takes into account historical circumstances.20

Davies acknowledges that although the common law has always been recognised as developing over time, it is a comparatively modern view that individual judges are instrumental in the development of certain doctrines or areas of law, whereas previously the body of law had not be regarded as the work of an individual judge. Davies cites Lord Atkin’s ‘neighbour principle’ that was central to the decision in Donoghue and Stevenson21 and ‘the related (but in many ways novel) ‘proximity’ test advanced by Deane J in Jaensch v Coffey.’22

Roland Barthes argument that the ‘Author’ was ‘an invention of the Enlightenment and of Western individualism’ is mentioned, with particular reference to the declaration of Barthes that ‘it is language which speaks, not the author’.23 Davies compares this to the common law view that the law speaks, not the judge, and writes that ‘the emphasis placed in modern legal thought upon authorial intention, whether of judges or legislatures, is derived from a world view which emphasises the autonomy of individual actors’.24

Davies states that ‘The declaratory theory is one of the ways in which the common law has defended itself against the accusation that the law is political.’25 The judicial process is not the result of individual bias, but the work of the judiciary at large; though Davies acknowledges that critics of ‘traditional jurisprudence’ have argued that judicial decisions are inevitably influenced by society’s systems of power.26

Unwritten Law and Time Immemorial

In addition to the emphasis on individualism, the law in the 17th century remained largely unwritten, subverting the individual innovation of particular judges.27 Davies suggests that this changed as the volume of written law expanded, forcing ‘the individual judge or writer to become visibile in the process of legal development.28

Lex non scripta

‘The common law was said to have originated in custom and in immemorial usage, in contrast to statutes, which are inherently written, and derive their force from a written form.’29 The unwritten origins of the common law make it difficult to discern any particular author.30

Matthew Hale, The History of the Common Law in England

Hale divided the Laws of England into two kinds: Lex Scripta (the written law) and Lex non Scripta (the unwritten law), the latter of which obtains its force by 'immemorial usage or custom'.

In contrast, Hale explains that the Leges Scriptae ('usually called Statute Laws or Acts of Parliament') are 'originally reduced into Writing before they are enacted or receive any binding Power'. The legitimacy of a written law is derived from its having been consented to by the three parts of the legislature: the King, the Lords and the Commons. 'But the Kings of this realm, with the Advice and Consent of both Houses of Parliament, have Power to make new Laws, or to alter, repeal, or enforce the Old.'

Even so, Hale divides statutes into those which were made 'before Time of Memory' and those made 'within or since Time of Memory'. The 'Time of Memory' is fixed at the beginning of the reign of Richard I (6 July 1189), and anything after that is considered within legal memory.

Accordingly, legislation made before the reign of Richard I that has not been repealed or altered (whether by contrary usage or subsequent legislation) are part of the Lex non Scripta, and thus part of the common law and obtain their force by immemorial usage or custom.

Hale acknowledges that the 'unwritten law' is not literally unwritten --- it is evidenced by records of pleas, proceedings and judgments --- but that they did not have their origin in written form, nor derived their force from writing.

Davies highlights the distinction between the origin of laws: legislation comes from written form, the common law comes from custom. This ‘is interesting because … identifying a specific and formal origin was not considered to be crucial to the validity of a law. In contrast, the theory of legal positivism is founded upon the idea that in order to be valid a legal principle must have an identifiable origin’.31

Immemorial usage

According to Hale, the common law is legitimate not because it was laid down by someone with authority, but because of its age.32 ‘Because the common law has endured and been developed over such a long period of time, it is, according to this view, imbued with the experience and wisdom of its age, giving it an unquestionable superiority over statutes, which by comparison are devised in the heat of the moment.’33

Hale, Blackstone and others held that the ‘timelessness of the common law … gives it its authority.’34 The ‘goodness’ of a law is determined by reference to its authoritativeness as well as its compliance with perceptions of what is just and reasonable.35 ‘The “goodness of a custom” … depended upon its having been used since before 6 July 1189.’36

Davies explains that time immemorial was used as a justification for law, quoting Sir Edward Coke in Calvin’s Case:

we are but of yesterday, (and therefore had need of the wisdom of those that were before us) and had been ignorant (if we had not received light and knowledge from our forefathers) and our days upon the earth are but as a shadow, in respect of the old ancient days and times past, wherein the laws have been by the wisdom of the most excellent men, in many successions of ages, by long and continual experience, (the trial of right and truth) fined and refined, which no one man … in any one age could ever have affected or attained unto. And therefore … no man ought to take upon him to be wiser than the laws.37

As a consequence of our short lives and limited knowledge attained, Coke held that we must submit our individual ideas and judgment to the wisdom of the law, ‘which represents the entire experience, authority, and reason of the past.’38

Artificial reason

In common law theory there is a dichotomy between the process of legal reasoning in decided cases and the arbitrariness of Parliament’s political decisions.39 The tension between the courts and Parliament is expressed by Coke in Dr Bonham’s Case:

it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.40

Davies draws attention to Coke’s distinction between between the natural reason that all individuals may possess, and artificial (or legal) reason that can only be gained by studying the common law at length: the common law, although not inferior, requires the latter, as natural reason by itself would create a plethora of conflicting conclusions about what the appropriate laws should be.41 This was at issue in a land dispute case recorded by Coke in his Twelfth Reports:

the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges; to which it was answered by me, that true it was … but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural law reason, but by the artificial reason and judgment of law [requiring] long study and experience … .42

Thomas Hobbes rejected many of these ideas by contrasting his positivist views with those of a common lawyer.

Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the Common Laws of England

Hobbes' Lawyer argues that Nemo nascitur Artifex: no one is born an artisan. Legal reason is summa Ratio (supreme reason) that can only be obtained through long study, observation and experience. This reason is dispersed into many several heads united to make the law across many successions of Ages by an infinite number of learned men.

The Philosopher cannot conceive that legal reason must be artificial rather than natural. The Philosopher concedes that they understand that knowledge of the law requires much study (as do other arts and sciences), but rejects the notion that the law is a product of wisdom, regardless of how perfect it may be. The Philosopher instead prefers to refer to law as being grounded in authority: law cannot be made by those without legislative power. The Philosopher also rejects arguments that law is developed solely by those learned in the law: 'all the Laws of England have been made by the Kings of England, consulting with the Nobility and Commons in Parliament, of which not one of twenty was a Learned Lawyer.'

The Lawyer states that the Philosopher is talking about legislation, and the Lawyer is talking about common law, to which the Philosopher retorts: 'I speak generally of Law.' Hobbes' counters arguments of the authority of law by arguing that, as the King is at the pinnacle of the legal hierarchy, judicial and legislative authority derives from the sovereign.

Hobbes can be characterised a proto-positivist, defining law as publicly declared commands of those with sovereign power as to what persons may do and must not do. The King's reason underpins law, as even the judges (including Coke) have been appointed by and derive authority from the monarch. As a consequence of individual variance in opinion on what is reasonable, the sovereign determines the laws and general institutions.

Davies comments that ‘What this argument tends to overlook is that the classical common law view is that it is not individual judges who determine the law: although the law is expounded and incrementally developed by the accumulated decisions made by individuals, personal opinions are not the source of the law.’43 Hale defended common law as artificial reason in Reflections by the Lord Chiefe Justice Hale on Mr Hobbes his Dialogue of the Lawe, focusing on the difference between the study of law from other sciences.

The crux of Hale’s argument lies on the reality that philosophers cannot arrive at agreement on a ideal system of law, nor can it be mathematically deduced. Artificial legal reasoning provides stability and certainty to government, and that long experience should generally be preferred to new theories. Change is incremental, and laws that have been in existence such that no one can remember why they exist should not be discarded in favour of what an individual thinks is reasonable at the time.

Davies stats that artificial reason is less controversial than natural law, because the former relies on settled principles and leaves little room for subjective opinions of individuals.44

In common law countries ‘legal education’ still means … education in ‘legal reasoning’ … . Only legal education, to use the modern term, can facilitate the capacity to think like a lawyer. … Legal education has been criticised as a ‘training for hierarchy’ or a simple legitimation of the existing ideology and power relations of legal practice. There can be little doubt that much legal education has indeed been directed at reproducing established approaches to law, its relation to society, and the role of the lawyer. In this way, legal reasoning itself can be seen to be conservative of past legal structures: this conservatism is amply evidenced in Coke’s and Hale’s attitude to the legal past.45

According to Davies, the problem of how to adequately describe the process of legal change has endured into twentieth century jurisprudence:

there would seem to be some difficulty with conceptualising legal change itself. … To put it in the context of this chapter, if that which is old is valued primarily because of its age, then how can new principles or areas of law develop which have a comparable legal value? If judges only declare a law which represents a collective, immemorial wisdom, then how does the law change?46

Davies suggests that it is because we now take for granted that judges will ‘examine, distinguish, alter, or reject precedents’ and that legislation will modify the common law ‘that we no longer have the attitude that the age and endurance of a common law principle is testimony to its value.’47 This is described as a ‘paradox’: the common law is essentially conservative but reliant upon innovation from theoretical sources.48

The relationship between the common law and its social environment is unclear, Davies suggests, citing SGIC v Trigwell in which ‘several High Court [of Australia] judges stated explicitly that the court could not alter the common law simply because of social change’, but which runs contrary to increased experience of courts taking into account public policy considerations since the 1980s.49

A slightly more philosophical question is whether the contemporary common law system is essentially the same as that which prevailed in 13th century England. … If there is virtually nothing of the substance, and very little of the form, of 13th century common law left in common law systems, can we meaningfully say that the system itself has endured? … [T]hat depends on how the identity of a legal system is perceived — not only the identity through time (to what extent is modern British law continuous with its past?) but also across jurisdictions (where does Australian law stop, and British, US, or Canadian law start?). Is there a ‘common law’ identity, not merely derived from the fact of a shared heritage, but also derived from cross-jurisdictional influences?50

Julius Stone, 'The Ratio of the Ratio Decidendi' (1959) 22 Modern Law Review 597

Stone acknowledges the contradiction encountered by attempting to reconcile the belief that the common law is does not change with the reality that over time it in fact does. 'It remains a common assumption among most of us, even today, that the present common law is somehow still one with that common law whose origins we trace back into the early centuries of the modern world. We think of it as a single system of law, somehow linked into the united throughout time.' Stone argues that the doctrine of precedent evokes a following of 'the old ways', suggesting 'a condition of rest'. This implies a stability of the legal system that has remained governed by the same system of law, despite social, economic and technological changes, regardless of how vast they may be.

Against this backdrop, Davies compares the divergence of Coke and Hale, who, although agreeing on basic matters, had different perspectives on legal change:

Put briefly, Coke wished to preserve both the formal and substantive identity of the common law, arguing that it had an ancient origin and that the minor changes which had occurred were degenerative, rather than progressive. In contrast, Hale pointed out that no single origin of the common law, either ancient or otherwise, could be satisfactorily identified, and that it had grown and developed in accordance with the requirements of society.51

Coke

Coke (and others of his era) held that common law originated before the Norman Conquest, and had remained essentially unchanged by the early seventeenth century; Fortescue claimed that the common law survived the Roman, Saxon, Danish and Norman invasions.52 Coke emphasised the non-political nature of the law and judiciary that flowed from its status as immemorial wisdom.53 Peter Goodrich argued that the creation myth of common law ‘lends an identity to a tradition that is otherwise and self-evidently polyglot, partial, and impermanent.’54

Davies is critical of Coke’s tendency to cherry pick dubious sources to support his extreme view that the law had remained static since ancient times: ‘One such discredited source was the Mirror of Justices, which Coke accepted as a record of King Arthur’s law.’55 But Davies is quick to point out that ‘it is important not to simplify or reduce his ideas to the obviously indefensible belief in a legal system which had for centuries remained identical to its original form in some remote era.’56

Edward Coke, Preface to the Fifth Reports

Coke saw legal change as either 'degenerative' or restorative': any departure from an existing legal principle was ordinarily a degeneration of the common law. Despite the inevitability of these degenerative changes, there could also occur changes aimed at restoring the original state of the law. Coke believes that the common law in its original form would conquer all false diversions, on the basis that truth will in the end prevail. The certainty, simplicity, constancy and purity of truth contrasts with the infinitely-reproducing error.

Hale

Unlike Coke, Hale had a more realistic sense of the historical background of the common law. Hale acknowledged that the common law tradition had no specific point of origin and recognised its transient nature. Hale pointed out that English law had been derived from several sources — including Danish, Norman, Saxon and ancient British customs — and these are indistinguishably interwoven to form the common law as it was by the seventeenth century. This continuity grounded the common law to an ongoing, seamless tradition.

In Hale’s view, the law was like the legendary Argo: a ship that underwent so many repairs that no original part remained. It was nonetheless, still the same ship. ‘Even if there is nothing at all left of the original material of the common law, it retains its identity and also its significance as the representative of national unity and security, because of the continuation through time of the common law tradition.’57

Matthew Hale, The History of the Common Law of England

Hale acknowledges that that while the Britons were the ancient inhabitants of the Kingdom of Britain, mingled with them over the centuries were the Romans, Picts, Saxons, Danes and Normans, such that they were incorporated as one common people and nation. A number of difficulties therefore arise in attempting to touch the original laws.

The first of these is that that laws accomodate the conditions, exigencies and conveniences of the people resulting in variation of the laws over long periods of time. The common law at the time of Hale was, he acknowledged, different when Glanville wrote under Henry II and Bracton under Henry III, but it is impossible to determine when the changes began.

The second difficulty is that so many different persons have inhabited England at various different points, all of which have influenced the governance of the Kingdom or regions of it. In different regions Saxon, Danish, ancient Briton and Mercian laws have applied. From these, Edward the Confessor extracted the common law, and it is impossible to reduce the laws to their true original as Danish, Norman, Saxon or British law.

Davies explains that this approach prevailed in common law theory, ‘possibly because the rapid increase of legal writing and with it the evidence of substantial and ongoing legal change, would eventually have made the believe in a static “ancient constitution” impossible.’58

Critiques of Common Law Theory and Practice

Davies writes that Jonathan Swift was unimpressed by the eighteenth century English common law system, and wrote a satirical account of it in Gulliver’s Travels.59 The satirical novel attacks artificial reason for leading to obscurity and injustice, and the use of precedent ‘which it seems can be used for anything.’

Jonathan Swift, Gulliver's Travels

Swift is sceptical of lawyers, who are bred up from their youth in the art of proving by words multiplied for the purpose, that white is black, and black is white'. He is critical of the requirement to hire a lawyer to defend against such arguments that are contrary to common sense. Judges are appointed from the 'most dexterous lawyers who are grown old or lazy, and having been biased all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury and oppression, that I have known several of them to refuse a large bribe from the side where justice lay, rather than injure the Faculty by doing anything unbecoming their nature or their office.'

Swift criticises the doctrine of precedent as being irrelevant to a just outcome and as being inefficient by delaying cases, in some instances by several years. The language of law is used to confound the layperson and confuse 'the very essence of truth and falsehood, of right and wrong; so that it will take thirty years to decide whether the field, left me by my ancestors for six generations, belong to me or to a stranger three hundred miles off.'

Davies traces a significant break with common law theory tradition to the work of Jeremy Bentham, who widely criticised common law jurisprudence for its general obscurity, inaccessibility and illogicality. In Bentham’s view the system of precedented perpetuated unjust legal doctrines and was prone to manipulation by corrupt judges, such that it did not reveal the state of the law with sufficient clarity. The resulting technical and incoherent doctrines (many of which have survived) were inaccessible to those without sufficient legal training.60

Bentham described common law as ‘dog law’:

When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog; and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do — they lie by till he has done something which they say he should not have done, and then they hang him for it. … [ex post facto law] is an abomination interwoven in the very essence of that spurious and impostrous substitute, which, to its makers and their dupes, is an object of such prostrate admiration, and such indefatigable eulogy, under the name of common or unwritten law.61

‘If judges make law, and in the same instance apply it to the case before them, they are in effect determining the legal relationship between the parties. Yet [this] is arguably unavoidable in any case: even statutes require interpretation, and in that sense their effect can never be determined in advance.’62 In Bentham’s view, the common law was made through the exercise of arbitrary authority according to the moral and political whims of judges, hiding its true nature behind a screen of rules.63

Bentham wish to have the common law replaced with a comprehensive utilitarian legal code: in 1811, Bentham wrote to James Madison, the then President of the United States, offering to draft such a code, ‘arguing that until the common law was abolished entirely it would corrupt any law created by the legislature.’64 Modern criticism has generally been directed towards the conservatism of classical common law and the notion that judges merely declare the law.65 Oliver Wendell Holmes wrote:

It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.66

Davies notes that this statement ‘has been fairly influential’, more so in the United States ‘where the doctrine of precedent is more flexible than it is in Australia or the United Kingdom.’67 Regardless, the relevancy of Holme’s argument remains: in the United States Supreme Court decision Bowers v Hardwick, White J (in the majority) cited the ‘ancient’ roots of prohibitions of homosexual behaviour in relation to a Georgia statute that made homosexual sodomy a criminal offence.68

Davies writes that ‘one of the most frequent controversies associated with the residue of classical common law thought in the twentieth century concerns its supposed reliance on a view of law as somehow exterior to, and separate from, social and political contingencies.’69 Lord Reid wrote:

There was a time when it was thought almost indecent to suggest that judges make law — they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the pass word and the wrong door opens. But we do not believe in fairy tails any more.70

On the other hand, ‘it should be pointed out that Holmes and Reid both appear to have put a modern interpretation on the idea that judges merely declare the law. … The dominant view of English common law was that it represented an accumulation of communal wisdom, and was in that sense customary. Far from being “out there” or external to the human dimension, social relations over the ages were its real source. … So while belief in an Aladdin’s cave is certainly somewhere unrealistic in these individualistic times, this does not very accurately describe the common law consciousness.’71

Common Law and Modern Jurisprudence

Common law theory remains part of the way we think about legal development and judicial reasoning, and the distinction between making and applying law.72 The modern perception views the common law doctrine of precedent as consisting of a set of rules and principles that survive their effect on the parties in a particular case: the judicial function is mixed, involving both laying down general propositions of law and applying the existing law to new situations.73

At the same time, modern jurisprudence tends to take the positivist view that law exists as a set of positive rules that have been created by someone, whether that be a legislative body or a judicial entity, while common law theory saw it as declarative of a body of law with no fixed origin.74

Dworkin’s empire

A positivist objection to the common law view that judges simply declare the law was that in some cases there is no clear rule of law to apply, so the judge must determine and apply a new one: thus the judge has broad discretionary legislative powers.75 Ronald Dworkin objected to this on several grounds.

The first is that positivists seem to assume that the common law is simply a system of rules; Dworkin argued that it is composed of additional aspects including less formal principles, policies and standards.76 But this has been criticised as not accurately representing positivist theory: ‘As Joseph Raz and others have pointed out, reliance on a formal concept of rules is not at all essential to positivism.’77

The second is that in Dworkin’s view that is always a correct way of deciding a case, even if there is no precedent for a particular matter: the decision is made by acting coherently within the web of principles.78 The problem with this argument is that it does not avoid the retrospective injustice — it makes little difference if at the time of a dispute there was a ‘correct’ solution that could be derived from existing principles but only a judge knows about it.79

In Law’s Empire, Dworkin attempted to refine his theory to take into account the failings of earlier versions, yet his ‘major concern [was] to limit the scope of judges for reaching contradictory decisions, and thus to restore faith in the objectivity and fairness of the judicial process.’80 To achieve this, Dworkin combines the common law notion of an institutional history with his ‘aesthetic hypothesis.’81 Thus the duty of the judge is to interpret the institutional history in its ‘best light’ and to render a meaning of the law consistent with the past and general community values.82

Conclusion

Davies suggests that classical common law theory represents a much more organic perception of the law than is currently held.83 Those writing prior to the nineteenth century ‘took seriously the idea that law was essentially common to the people and represented a customary reason: law was just just something external to people, it was part of their existences in a community.’84 She concludes:

Thinking about the common law as an oral narrative may in some respects be seen as encouraging an inherently conservative understanding of law, since part of the idea of that narrative is that the past is conserved in the flow of the legal story. Sudden innovations are not possible in this schema. On the other hand, it may also be that thinking about the common law in this way can provide a basis for a dynamic understanding of the law, one that is not constrained by any particular form or content, but merely by the inexorability of change over time.85




  1. Margaret Davies, Asking the Law Question (Thomson Reuters, 2002) 33.

  2. Ibid.

  3. Irene Watson, ‘Indigenous Peoples’ Law-Ways: Survival Against the Colonial State’ (1997) 8 Australian Feminist Law Journal 39.

  4. Davies, above n 1, 34.

  5. Ibid.

  6. Ibid 34–35.

  7. Ibid 35.

  8. Ibid 35–36.

  9. Gerald Postema, Bentham and the Common Law Tradition (Clarendon Press, 1989) 3–4.

  10. Davies, above n 1, 37

  11. Ibid.

  12. Ibid.

  13. Ibid.

  14. Ibid.

  15. Ibid 38.

  16. Ibid.

  17. SGIC v Trigwell (1978) 26 ALR 67, 70.

  18. Davies, above n 1, 39.

  19. Ibid, citing Lee Godden, ‘Wik: Legal Memory and History’ (1997) 6 Griffith Law Review 123.

  20. Ibid.

  21. Donoghue v Stevenson [1932] AC 562.

  22. Davies, above n 1, 39 citing Jaensch v Coffey (1984) 155 CLR 549.

  23. Davies, above n 1, 39 quoting Roland Barthes, ‘The Death of the Author’ in Image Music Text (Stephen Heath trans, Flamingo, 1984) [trans of ‘Le most d’auteur’ (first published 1968)].

  24. Davies, above n 1, 39–40.

  25. Ibid 40.

  26. Ibid.

  27. Ibid.

  28. Ibid.

  29. Ibid 41.

  30. Ibid.

  31. Ibid 42.

  32. Ibid.

  33. Ibid.

  34. Ibid 43.

  35. Ibid.

  36. Ibid.

  37. Calvin’s Case (1608) 7 Co Rep 1, 3b.

  38. Davies, above n 1, 44.

  39. Ibid.

  40. Dr Bonham’s Case (1610) 8 Co Rep 114, 118b. See also George Smith, ‘Dr Bonham’s Case and the Modern Significance of Lord Coke’s Influence’ (1966) 41 Washington Law Review 297.

  41. Davies, above n 1, 44–45.

  42. Prohibitions de Ray 12 Co Rep, 65.

  43. Davies, above n 1, 47.

  44. Ibid 49–50.

  45. Ibid 50 (citations omitted).

  46. Ibid 50–51.

  47. Ibid 51.

  48. Ibid.

  49. Ibid, citing SGIC v Trigwell (1978) 26 ALR 67.

  50. Ibid 51–52.

  51. Ibid 53.

  52. Ibid 53–54.

  53. Ibid 55.

  54. Peter Goodrich, Oedipus Lex (University of California Press, 1995) 81.

  55. Davies, above n 1, 56.

  56. Ibid 56–57.

  57. Ibid 59.

  58. Ibid 60.

  59. Ibid 61.

  60. Ibid 62.

  61. John Bowring (ed), The Works of Jeremy Bentham (Russell and Russell, 1962) vol 5, 235.

  62. Davies, above n 1, 63.

  63. Ibid.

  64. Ibid.

  65. Ibid.

  66. Oliver Wendell Holmes, ‘The Path of the Law’ in Collected Legal Papers (Harcourt, Brace & Howe, 1920) 187.

  67. Davies, above n 1, 63.

  68. Ibid, 63–64, citing Bowers v Hardwick, 478 US 186, 192–194 (1986)

  69. Davies, above n 1, 64.

  70. Reid, ‘The Judge as Lawmaker’ (1972) 12 Journal of the Society of Public Teachers of Law 22, 22.

  71. Davies, above n 1, 64–65.

  72. Ibid 65.

  73. Ibid.

  74. Ibid.

  75. Ibid 66.

  76. Ibid.

  77. Ibid.

  78. Ibid.

  79. Ibid.

  80. Ibid.

  81. Ibid 66–67.

  82. Ibid 67.

  83. Ibid.

  84. Ibid.

  85. Ibid 68.