From Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century. Lecture 11, Part 1). Published in 1905 by Macmillan & Co Ltd, London.
‘As all lawyers are aware, a large part and, as many would add, the best part of the law of England is judge-made law—that is to say, consists of rules to be collected from the judgments of the Courts. This portion of the law has not been created by Act of Parliament, and is not recorded in the statute-book. It is the work of the Courts; it is recorded in the Reports; it is, in short, the fruit of judicial legislation.
The amount of such judge-made law is in England far more extensive than a student easily realises. Nine-tenths, at least, of the law of contract, and the whole, or nearly the whole, of the law of torts are not to be discovered in any volume of the statutes. Many Acts of Parliament, again, such as the Sale of Goods Act, 1893, or the Bills of Exchange Act, 1882, are little else than the reproduction in a statutory shape of rules originally established by the Courts. Judge-made law has in such cases passed into statute law. Then, too, many statutory enactments, e.g. the fourth section of the Statute of Frauds, though they originally introduced some new rule or principle into the law of England, have been the subject of so much judicial interpretation as to derive nearly all their real significance from the sense put upon them by the Courts.
Nor let anyone imagine that judicial legislation is a kind of law-making which belongs wholly to the past, and which has been put an end to by the annual meeting and by the legislative activity of modern Parliaments. No doubt the law-making function of the Courts has been to a certain extent curtailed by the development of parliamentary authority. Throughout the whole of the nineteenth century, however, it has remained, and indeed continues to the present day, in operation. New combinations of circumstances—that is, new cases—constantly call for the application, which means in truth the extension of old principles; or, it may be, even for the thinking out of some new principle, in harmony with the general spirit of the law, fitted to meet the novel requirements of the time. Hence whole branches not of ancient but of very modern law have been built up, developed, or created by the action of the Courts. The whole body of rules, with regard to the conflict of laws (or, in other words, for the decision of cases which contain some foreign element), has come into existence during the last hundred and twenty, and, as regards by far the greater part of it, well within the last eighty, or even seventy years. But the whole of this complex department of law has neither been formed nor even greatly modified by Parliament. It is the product of an elaborate and lengthy process of judicial law-making. The Courts or the judges, when acting as legislators, are of course influenced by the beliefs and feelings of their time, and are guided to a considerable extent by the dominant current of public opinion; Eldon and Kenyon belonged to the era of old toryism as distinctly as Denman, Campbell, Erle, and Bramwell belonged to the age of Benthamite liberalism. But whilst our tribunals, or the judges of whom they are composed, are swayed by the prevailing beliefs of a particular time, they are also guided by professional opinions and ways of thinking which are, to a certain extent independent of and possibly opposed to the general tone of public opinion. The judges are the heads of the legal profession. They have acquired the intellectual and moral tone of English lawyers. They are men advanced in life. They are for the most part persons of a conservative disposition. They are in no way dependent for their emoluments, dignity, or reputation upon the favour of the electors, or even of Ministers who represent in the long run the wishes of the electorate. They are more likely to be biassed by professional habits and feeling than by the popular sentiment of the hour. Hence judicial legislation will be often marked by certain characteristics rarely to be found in Acts of Parliament.’