Taking disagreement seriously: Courts, legislatures and the reform of tort law

Oxford Journal of Legal Studies

Volumn 25, Issue 3, 2005, Pages 393-417

  Cane, Peter ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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[No Author keywords available]

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EID: 27744559660     PISSN: 01436503     EISSN: None     Source Type: Journal    
DOI: 10.1093/ojls/gqi021     Document Type: Review

References (83)

1. Commonwealth of Australia, Review of the Law of Negligence (Canberra, September 2002) (hereafter referred to as 'Review'). Declaration of interest: The author was a member of the review panel.
2. For a discussion see P. Cane, 'Reforming Tort Law in Australia' (2003) 27 Melbourne ULR 649.
3. The Hon Justice Peter Underwood, 'Is Mrs Donoghue's Snail in Mortal Peril? (2004) 12 Torts LJ 39.
4. The basic arguments are old. See, e.g. R. Pound, 'Common Law and Legislation' (1908) 21 Harvard L Rev 383 at 404.
5. [2000] 2 AC 59.
6. [2002] QB 226.
7. [2004] 1 AC 309.
8. Cattanach v Melchior (2003) 215 CLR 1. The decision has been partially reversed by legislation in New South Wales (Civil Liability Act 2002, ss 70, 71) and Queensland (Civil Liability Act 2003, as 49A, 49B).
9. Harriton v Stephens (2004) NSWLR 694.
10. Since the High Court is not bound by its own decisions or those of any other court, as used by Kirby J this term must refer to something like 'a consensus of relevant judicial opinion as reflected in published reasons for decision'.
11. (2003) 215 CLR 1 at [70]-[75].
12. J. Stone, 'The Ratio of the Ratio Decidendi' (1959) 22 MLR 597.
13. Concerning legal melody see G.J. Postema, 'Melody and Law's Mindfulness of Time' (2004) 17 Ratio Juris 203.
14. See the Hon Justice Dyson Heydon, 'Judicial Activism and the Death of the Rule of Law' (2004) 10 Otago LR 493.
15. For a classic discussion see P.S. Atiyah, 'Common Law and Statute Law' (1985) 48 MLR 1.
16. McFarlane v Tayside Health Board (2000) 2 AC 59, 82
17. criticized, e.g. by L.C.H Hoyano, 'Misconceptions about Wrongful Conception' (2002) 65 MLR 883.
18. For a useful catalogue see W. Sadurski, 'Conventional Morality and Judicial Standards', 73 Virginia LR 339, 351-54 (1989).
19. For a careful statement of such an approach see M.A. Eisenberg, The Nature of the Common Law (Cambridge, Mass: Harvard University Press, 1988), esp. 14-26, 149-53. From my perspective, Eisenberg does not take disagreement seriously enough.
20. (2004) 59 NSWLR 694.
21. Ibid at [24].
22. Similarly, as Eisenberg argues, application of a common law rule by a judge who has formal power to develop or change it involves a (typically implicit) reaffirmation of the arguments that supported adoption of the rule: See Eisenberg, n 17 above, esp. 75-76, 151-54. In the common law, the content and justification of rules are inextricably intertwined. It is only by giving the formulation of a rule canonical status that this link can be broken. This characteristic of the common law explains the sense in which it is based on reason(ing), and why judges have an obligation to give reasons for their decisions.
23. See generally G.J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986);
24. D. Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989), esp. chs 1 and 11
25. M. Lobban, The Common Law and English Jurisprudence 1760-1850 (Oxford: Clarendon Press, 1991), esp. chs 2 and 9.
26. Cattanach v Melchior at (2003) 215 CLR 1 at [74]. See also [82]-[83].
27. As opposed to 'theoretical reasons' which are reasons, for belief.
28. The word 'norm' is sometimes used to refer to court orders as well as to the common law and statutory rules and principles that support them: e.g. J. Gardner, 'The Legality of Law' (2004) 17 Ratio Juris 168. 1 will distinguish between them and refer only to the latter as 'norms'.
29. The rule designating the side of the road on which to drive is a classic example.
30. I do not mean to imply by the word 'exist' any particular view about the nature of values, such as 'realism' as opposed to 'emotivism'. All I mean by saying that a norm exists outside the law is that there are people for whom it provides a reason for action regardless of whether it is a legal norm.
31. For a richly suggestive historical reflection on this theme see S.F.C. Milsom, 'The Past and the Future of Judge-Made Law' (1981) 8 Monash LR 1.
32. Law is coercive but also, from a different perspective, it regulates the use of coercion ('self-help'). From this latter perspective, although legal coercion certainly needs to be justified, the very fact that its use is regulated by legal norms provides part of the justification, given the alternative of unregulated, extra-legal, 'private' coercion.
33. In the philosophy of St Thomas Aquinas, 'determinatio' refers to the process of giving concrete content to abstract values: J. Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 284-89.
34. Note that the concept of content-independence I am using is different from that discussed by P. Markwick, 'Law and Content-Independent Reasons' (2000) 20 OJLS 579.
35. T. Honoré, 'The Dependence of Morality on Law' (1993) 13 OJLS 1.
36. There is certainly a theoretical argument for concluding that without dispute-resolving institutions, there can be no legal system: J. Raz, The Authority of Law (Oxford: Clarendon Press, 1979), ch 6.
37. I use both of these terms broadly and generically to signify adjudicative bodies that have the power to legalize norms. Not all adjudicators recognized by the legal system have this power.
38. The historical story is complicated, of course: J.H. Baker, An Introduction to English Legal History (London: Butterworths, 4th edn, 2002), 196-201
39. S.F.C Milson, A Natural History of the Common Law (New York: Columbia University Press, 2003), ch 1 (and see 75 for the suggestion that legislation rides on the back of the common law).
40. See also Lord Rodger of Earlsferry, 'What Are Appeal Courts For? (2004) 10 Otago LR 517, 517-19.
41. On the relationship between consistency (i.e. norm-governed behaviour) and 'formal' justice see J. Gardner, 'The Virtue of Justice and the Character of Law' (2000) 53 Current Legal Problems 1.
42. Witness the debate in US administrative law about the choice that regulatory agencies have between adjudicative and legislative law-making: P.L. Strauss, Administrative Justice in the United States (Durham, NC: Durham Academic Press, 2nd edn, 2002), 258-62.
43. A good modern illustration is provided by the work of the European Court of Justice over the past 40 years or so in developing the main features of EC law. See, e.g. M Shapiro, 'The European Court of Justice' in P. Craig and G. de Búrca (eds), The Evolution of EU Law (Oxford: Oxford University Press, 1999).
44. Witness the title of Hazel Genn's recent book: Paths to Justice: What People Do and Think About Going to Law (Oxford, Hart Publishing, 1999).
45. Concerning the historical development of legislation and of the functional differentiation of the legislature and the courts see Baker, above n 34 at 204-17.
46. The classic exposition is L.L. Fuller 'The Forms and Limits of Adjudication' 92 Harvard L Rev 393 (1978).
47. P. Cane, Responsibility in Law and Morality (Oxford: Hart Publishing, 2002), 165-67. Premise-driven voting is more likely than conclusion-driven voting to produce coherence and consistency over time. This explains the importance of the principle of stare decisis and the concept of the ratio decidendi, the effect of which is to apply the principle of majority-voting to premises: Even the reasoning of judges who dissent from the majority's conclusion may contribute to the majority premises - the ratio decidendi. Voting in legislative assemblies is also conclusion driven. Whereas the particular dispute before the court provides the focus for judicial voting, the canonical words of the statute provide the focus for legislative voting. This explains why court orders and decisions are canonically formulated whereas the reasons for those decisions are not, any more than are the reasons for the enactment of statutes.
48. Conduct is either legal or illegal: Legality is not a matter of degree.
49. The lack of discipline in the statement of the reasons and reasoning supporting legislation provides one of the strongest arguments against interpreting legislation by reference to parliamentary debates and other travaux preparatoires.
50. This is not to say that there cannot be too much collegiality. The modus operandi of the U.S. Supreme Court puts a premium on building coalitions in favour of particular outcomes; and this may be inimical to consistent and coherent development of the law. It may be easier for individual judges than for groups of judges to tell a consistent and coherent story to support their voting decisions in individual cases over time. The fact that the nine-member US court invariably sits en banc may aggravate the problem. The seven-member Australian High Court increasingly sits en banc, but the strongly individualistic ethos of its members and its non-collegial mode of operation tend to produce the problems outlined in the text. The UK House of Lords sits in shifting panels of roughly half its total membership. This may make it easier for its judges to find a safe passage between the Scylla of excessive individualism and the Charybdis of excessive collegiality (I am very grateful to Adrienne Stone for stimulating this fruitful line of thought).
51. This point must not be taken too far. Law in general and the common law in particular is always more-or-less uncertain. Contrary to what judges sometimes say, (moderate) uncertainty in the law does not make planning impossible any more than does (moderate) uncertainty in life generally: Eisenberg, above n 17 at 157-58.
52. For an account of 'deliberative democracy' that takes disagreement seriously see A. Gutmann and D. Thompson, Democracy and Disagreement (Cambridge, Mass: Belknap Press, 1996).
53. A. Tomkins, 'What is Parliament For?' in N. Bamforth and P. Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford: Hart Publishing, 2003). Jeremy Waldron, who is searching for the 'dignity of legislation' in the activities of legislative assemblies - especially majority voting (Law and Disagreement (Oxford: Clarendon Press, 1999), Part I; The Dignity of Legislation (Cambridge: Cambridge University Press, 1999)), seems to me to be looking in the wrong place, at least so far as Westminster systems are concerned.
54. Jeremy Waldron, who is searching for the 'dignity of legislation' in the activities of legislative assemblies - especially majority voting (Law and Disagreement (Oxford: Clarendon Press, 1999), Part I; The Dignity of Legislation (Cambridge: Cambridge University Press, 1999)), seems to me to be looking in the wrong place, at least so far as Westminster systems are concerned.
55. But see n 36 above.
56. This is why acts of attainder are thought problematic.
57. Note that this argument is primarily directed to the norm-legalization element of adjudication. By contrast, one aspect of the constitutional desideratum of judicial independence is that judges should be held accountable for the way they resolve individual disputes by being required to respond publicly and in a reasoned way to the arguments and proofs presented by the parties, and not by being answerable to some person or body outside the adjudicative triad. But because the demands of consistency forge a strong link between resolution of individual disputes and legalization of norms, the argument tends to be applied to judicial activity generally and not just to norm-legalization. At all events, the concept of representativeness is deeply ambiguous. To say that courts are not representative might signify that judges are not popularly elected, or that judges as a group are not a 'representative cross-section' of society. Nevertheless, we might consider judges to be representatives in the sense that they are appointed to perform particular tasks on society's behalf. Each of these different senses of representativeness has different implications for issues such as judicial appointments and accountability.
58. Note that I am using 'consistency' in two different, but related, senses. The consistency that underpins adjudicative legalization of norms is the consistency of treating like cases alike ('formal justice' as it is sometimes called). The consistency in issue here is consistency within the body of common law norms.
59. Courts may and do attempt to remove incoherence and inconsistency from the statute book by interpretative methods.
60. For instance, people may disagree about when it is appropriate for existing common law norms to be rejected (by 'overruling') or side-lined (by 'distinguishing').
61. Judges vary in the degree of respect they accord to 'precedent'. The priority norm leaves much room for individual judicial choice. This minimizes the risk of insoluble conflict between the priority norm and the coherence norm.
62. To the extent that they do not affect the decision, they are resolved by the principles according to which the ratio decidendi is identified, which provide a surrogate for majority voting.
63. F. Schauer 'Is the Common Law Law?', 77 California L Rev 455 (1989). The increasing willingness of appeal courts to revisit earlier decisions is perhaps the main target of Heydon, above n 13.
64. For a different perspective see Lord Rodger of Earlsferry, above n 34 at 529-36.
65. The non-documentary nature of 'morality' may be one reason why there is much disagreement amongst philosophers about 'the nature of morality'. For a helpful survey see G. Wallace and A.D.M. Walker, 'Introduction' in G. Wallace and A.D.M. Walker (eds), The Definition of Morality (London: Methuen, 1970).
66. For recent discussion see R.J. Wallace, 'The Rightness of Acts and the Goodness of Lives' in R.J. Wallace et al. (eds), Reason and Value: Themes from the Moral Philosophy of Joseph Raz (Oxford, Clarendon Press, 2004).
67. Particular courts may, of course, have limited jurisdiction. The statement in the text refers to the court system as a whole; and recall that I am using the term 'the courts' very broadly to refer to legal machinery for resolving disputes by adjudication. In this sense, the job of 'the courts' is to resolve disputes put before them, full stop, without limitation to disputes of any particular type or content. This partly explains why the common law is conceived as the background against which legislation operates, whereas in a 'Code system' the Code provides the background against which adjudication operates (D. Kennedy, A Critique of Adjudication (Cambridge, Mass: Harvard University Press, 1997), 241): The common law, like the Code, must 'have an answer for everything'.
68. Often called 'moral' or 'ethical' norms.
69. These principles are related to the functions and resources of law and the legal system. This issue was addressed in one of the most famous jurisprudential debates of the 20th century between Partrick Devlin and Herbert Hart under the heading 'the legal enforcement of morals': P. Cane 'Taking Law Seriously: Starting Points of the Hart-Devlin Debate' (2006) 10 Journal of Ethics (forthcoming).
70. Such considerations are sometimes referred to as matters of 'policy'; but this word is used in a bewildering number of other ways as well. Perhaps the two most frequently rehearsed policy arguments in tort law are the 'floodgates' and 'overkill' arguments.
71. For this reason, all laws, whether or not the product of political processes, should be revisable. People are more likely to accept laws they disagree with if they know that their existence will not stop debate about the terms of social cooperation. This is why effectively unamendable constitutional provisions are undesirable. See also Postema, above n 21 at 461-64.
72. L.L. Fuller, The Morality of Law (New Haven: Yale University Press, 2nd edn, 1969).
73. I suspect that at least one cause of judicial hostility to legislative 'interference' with tort law is dissatisfaction with the way the political process operates in practice - for instance, by according 'too much weight' to the views of pro-defendant lobby groups. Another explanation may be judicial 'rent-seeking'.
74. Harriton v Stephens (2004) 59 NSWLR 694 at [24].
75. A third argument might be that tort law is concerned with interpersonal 'corrective justice', not social 'distributive justice'. For discussion of this argument see P. Cane, 'On the Division of Law-Making Labour' (2004) 7 The Judicial Review 31, 47-49
76. Responsibility in Law and Morality (Oxford: Hart Publishing, 2002), 181-90
77. 'Tort Law and Distributive Justice' [2001] New Zealand LR 401.
78. See, e.g. D.A. Farber and P.P. Frickey, Law and Public Choice: A Critical Introduction (Chicago: University of Chicago Press, 1991), ch 1.
79. Ironically, in the area of negligence law, at least, judicial vacillation in the past 25 years or so has arguably created much more instability than legislative intervention.
80. Note that the objection is to legislative change of existing common law rules rather than to legislative extension and development of the common law by the legalization of norms consistent with existing common law rules or designed efficiently to clean up a mess in the common law. Note, conversely, that the inflexibility of the common law affects its ability to change direction and to clean up its own mess more than its ability to move forward. Indeed, a commonly-touted advantage of adjudicative over legislative legalization is its capacity to deal sensitively and coherently with new areas of law that regulate activities which may develop in unforeseeable ways. This is one reason why legislation may be drafted effectively to delegate significant law-making power to courts. Another oft-cited motivation is a desire to 'depoliticise' contentious issues. Concerning the converse problem of statutory obsolescence and the role of courts in dealing with it see G. Calabresi, A Common Law for the Age of Statutes (Cambridge, Mass: Harvard University Press, 1982).
81. See, e.g. J. Dietrich, 'Liability for Personal Injuries Arising from Recreational Services: The Interaction of Contract, Tort, State Legislation and the Trade Practices Act and the Resultant Mess' (2003) 11 Torts LJ 244.
82. See n 7 above.
83. M. Krygier, 'The Traditionality of Statutes' (1988) 1 Ratio Juris 20.