Editors Note: In this post, Professor Robert Stevens replies to Baroness Hale’s keynote lecture to the Society of Legal Scholars in September 2016 (Baroness Hale’s lecture can be read here, and a video of the lecture viewed here).

It is an honour to have been asked to give a reply to Baroness Hale. In her lecture, Baroness Hale asks several questions, but in particular “when should a judge feel free to change the law rather than leave it to Parliament?” I will try to answer some of the questions Baroness Hale asks by starting with the question of how the common law, our law in common, which is entirely judge made, has any legitimacy at all. That should then enable us to provide guidance as to the limits of judicial power to legitimately change it.

That judges do not think of themselves as a subsidiary part of the legislative branch is demonstrated both by Baroness Hale’s speech but also by the way judges reason in cases. A legislator in arguing for or against a Bill before Parliament will not cite prior judicial decisions, and quote from judges from other jurisdictions. Our Supreme Court does, but why do so if they are not bound by any of this noise?

One reason is the importance of stability within the law. Once a rule has been set down this in itself provides a reason, albeit never a decisive one, for not overturning it, particularly retrospectively. So, Lord Hoffmann in Cambridge Water described any decision to overturn the long established rule in Rylands v Fletcher as ‘inconsistent with the judicial function’. Similarly on whether to overturn the admissibility of pre-contractual negotiations for the purpose of interpretation, starting with a blank sheet of paper the same judge confessed in Chartbrook v Persimmon Homes that he would not have introduced the rule, but would not change it now. The degree to which the need for stability and certainty trump the common law’s need to work itself pure, is a matter of judgment.

There are however more fundamental limitations upon legitimate judicial power. I shall try to answer the question Baroness Hale asks as to why the ‘tort of intentional harm’ could not have been extended to protect the actor Gordon Kaye from the vile behaviour of the Sunday Sport journalist Roger Ordish. The limits of judicial competence cannot simply be left to a matter of taste for the individual judge.

There are many reasons why we should in principle prefer our private law to be set down in legislation. Legislation has a democratic legitimacy judge made law does not have.  Our judge made rules were originally set down by unelected men (always white men) of the distant past. In other common law jurisdictions these men were foreigners. The common law is inaccessible to non-lawyers. It is ridiculous that someone who wishes to know what the rules on causation in the English law of torts are is required to read dozens of decisions of enormous length, by judges saying mutually inconsistent things that somehow have to be reconciled. How can such ‘law’ be used as a guidance rule for conduct? By contrast, google gives me access to all of the legislation in the United Kingdom and elsewhere in an instant. Judge made law is inherently uncertain, as is illustrated by the recent radical change in our law on illegality, creating a rule that differs not only from the ones we had in the past, but which is quite different from the law that prevails in every other common law system in the world. Any judge made rule can, in principle, be overturned, with retrospective effect, by our ultimate appellate court. Bentham, not someone I usually have much time for, was correct to think that there are significant rule of law problems with judge made law that legislation does not possess.

However, there is something valuable and different about judge made law that should cause us to be careful in replacing it, and if it is, requires us to ensure that the rules laid down by the legislature are kept under constant review. Where legitimate, the common law is not just a different source, it is of a different sort.

Say we start with a blank page, with no positive rules set down at all. A judge is appointed by a sovereign to do justice. What kind of rights may he or she set down for future judges to follow? One view is that in carrying out this task the judge is operating as a legislator would. The full range of considerations as to how to improve society should be in consideration. What rights will lead to the economically optimal results? What rules will deter people from acting in unpleasant ways? What kind of society do we want? If this were the manner in which judge-made law were created, then it should be replaced as soon as possible. The judges who formulated the rules that constitute our common law did so with no democratic mandate, no empirical evidence, no training as economists, and centuries ago. The society and conditions of modern day England are a world away from those of the seventeenth century.

The answer I would suggest is that common law rights were and are not created in this way. They are necessarily minimalist or basic because judge created. What are the basic, minimal rights that all systems pursuing justice must have? Our rights one against another restrict the liberty of each other to choose how to behave. In a world of absolute liberties we could kill, rape, steal, shout ‘Fire!’ in crowded theatres, deceive others with impunity, and break our agreements. In order for each of us to be free from interference by others, we must all have rights restricting others from behaving towards us in certain ways. These rights required by equal freedom justify the category of basic rights that we are all familiar with at common law. You must not tell me lies I believe. You must keep the agreements you make. You may not burn down my crops, or enter my home. You must not damage my reputation with others. Of course, although we may accept this minimal list of rights, or something very similar to it, we need positive law to give determinatio in cases of uncertainty. Where does my land end and yours begin? When is it permissible to damage another’s reputation when the truth is important? Over time, the judge made law has answered most of these kind of questions for us. The judge made positive law still has many gaps, and so is still being created, but it has no gaps in the sense that the judge is required to give an answer to every case with which he is presented according to what justice requires.

There are other rights that are not required by but are compatible with a system of equal freedom.  These are not the proper province of the courts. Two contrasting examples. It is impossible to imagine a civilised society with no law giving individuals the right to exclude others from physical things they own. A world where we were free to burn a farmer’s crops, or break into a stranger’s home at night, or steal lollipops from babies, or rip the clothes from one another’s backs is not a just one. In relation to some property, usually land, many societies have communal rights where no individual has the right to exclude others: a village green is an English example. However it is impossible to imagine any society we could consider just that recognised no right to personal property whatsoever.

By contrast, it is perfectly possible to imagine a civilised society that did not possess any patent, trademarks or copyright law at all. Copying a Picasso means that we now have two. The Australian Pirate Party state:

“We in the Pirate Party have simply decided that if sharing a love for culture, knowledge and information with our friends and family makes us pirates, then that’s what we are and we’re proud of it.”

This is a legitimate viewpoint (albeit not one I share even if my own royalties as an author are somewhat modest). The justification for patents is that they encourage innovation, for copyright that enables creative work to be funded, for trademarks that they allow us to have confidence in the things we consume. They are dependent for their justification upon the instrumental goals they seek to pursue. It is no accident that the origins of the general law of patents was in the Statute of Monopolies 1624, of copyright in the Copyright Act 1709, and of trademarks in the Trade Marks Registration Act 1875. Because these rights cannot be justified absent instrumental reasoning, their recognition was the proper province of the legislature. The one thing moral rights are not is moral rights (absent the law).

Similar are the rights in the UK that we have against the state contained in the Human Rights Act 1998. The label ‘human rights’ lays claim to the idea that these are rights that all humans have in all times and places, regardless of what the positive law in any particular place may say. Although this is often stated as if it were axiomatically true of the rights contained in human rights Conventions, it is obviously false. These are rights against a state that it secures for us a number of human goods. As they are dependent upon the existence of a state against which they are exigible, they are not universally held. Cavemen had no right to education good against anyone. Even rights such as that in Article 2 of the European Convention on Human Rights, which protects the right to life, does not merely give us a right not to be killed, as might naively be expected.  The State is not only obliged not to kill me (as all people are) but also to take positive steps to protect me from death.

The difference between the basis of our judge made rights and those under the Convention is well illustrated by the UK Supreme Court’s decision in Michael v The Chief Constable of South Wales Police. The police failed to respond promptly to an emergency 999 call and, as a result, Joanna Michael was murdered by her partner. At common law, do we have rights generally against persons that they take care to protect us from other people? Clearly not: the equal freedom principle does not require that we take positive steps to pick up a stranger’s baby drowning in an inch of water. Equal freedom does not require that we confer benefits upon other people. If we do not have such rights against persons generally, do we have such rights against the police specifically? The only legitimate source of such a right would be found in legislation. We cannot jump from the premise that the police are under a public duty to protect the community to the conclusion that any individual within society has a private right against them to protection. Nor can we simply assume, as one member of the court did, that because the police had been negligent, and this had left the claimant worse off than they otherwise would be, that the claim should be allowed unless there was a good countervailing reason why not. The claim at common law was rightly dismissed.

The claim under the Human Rights Act was allowed to proceed to trial. What is the justification for the extra rights the legislation confers? The answer is found in considerations that apply in the UK but not in some other common law jurisdictions such as Australia. The case for having constitutional constraints on state power within the wholly domestic context of a liberal democracy are difficult and controversial. Within an international context they are much easier. If we in the UK think that there are certain human goods all societies should seek to secure for their citizens, how can we apply pressure on, say, Belarus to meet those standards? Absent military force, the only tool available is international agreement.  This is the justification for the European Convention on Human Rights and the United Nations Declaration. If these rights are to be meaningful for citizens, this further requires both that there be an international forum for determining what they require (because if the UK is free to determine their meaning for itself so would other states) and that they be enforceable within each member states own domestic legal order. That is what the UK Human Rights Act seeks to achieve. This provides a powerful internationalist justification for a Bill of Rights that is absent in relation to, say, the (wholly domestic) Canadian Charter of Rights and Freedoms. The result in Michael justifiably differs between the minimalist approach of the common law, and the more generous approach of the legislation. The judges could not have done this.

It is sometimes claimed, either as a justification for, or as a reason why it is not required, that rights against the state that are found in Bills of Rights either have their origins in, or are found within, the common law. An examination of the different rights and their scope contained within the European Convention and UN Declaration shows this not to be so.  There is nothing in the common law that restricts Parliament’s power to, say, abolish freedom of assembly. Rights of this form are again the proper province of the legislature, not the courts. This is another proof of the falsity of the proposition that there is anything particularly fundamental or essentialist about such rights. It is perfectly possible to imagine civilised societies that do not possess a Bill of Rights of this kind, and we have a name for one: Australia.

And so to Mr Gordon Kaye and the disgusting actions of a journalist in sneaking into his hospital bed where he lay gravely ill, taking photographs of him, and conducting an interview My Kaye barely knew was happening.

Would it be legitimate to extend the tort of intentional harm to such a case? The first point to notice is that there is no such tort, or perhaps that that label is deeply misleading. The deliberate infliction of misery or upset is not actionable in English law. (See Wainwright v Home Office). Misery alone does not inhibit our ability to lead our daily lives, however acutely it is felt. Your infliction of misery on me does not impair my ability to reason, and hence does not constitute a violation of our equal freedom.

Contrast the 1919 case of Janvier v Sweeney. Here the defendant had told the claimant that she was wanted for communicating with a German Spy and she suffered what was then called Nervous Shock, what we would now call a recognised psychiatric illness. Impairing my ability to reason does inhibit our equal freedom, indeed in perhaps the most fundamental way possible. The law is right to draw a sharp distinction between misery on the one hand and psychiatric injury on the other.

So, Gordon Kaye could not have relied upon the kind of right violated in Janvier v Sweeney. Instead the step that was necessary was the recognition of a new right to a private life good against persons generally. Whether the recognition of a right against the state that it secures our private life in the Human Rights Act mandated the courts to recognise a right to privacy at common law good against the whole world is a question I will leave for another day.

So what are some of other implications of what I have said? One is that the legitimacy of the common law does not come from the judges best guess as to what ordinary people would think the law ought to be. That provides no firmer basis for the common law than does an appeal to commonsense. The judges have no hotline to general social attitudes, which in the pluralist society we now live in provide no firm ground on which to stand.

Second it is not enough to justify judge made law, as is sometimes lazily claimed, that a distracted and busy legislature has the power to overturn it if it seriously objects.

Third is that it is an important part of the judicial function to sometimes say never. The problems with the judge acting as kind of legislator do not disappear by the fact that they change the law in baby steps. So, in my view, no amount of incremental development could justify extending a tort concerned with interference with a right to possess a thing to interference with something that cannot be possessed, especially where there are already rules governing when and how contractual rights impose duties on third parties. Incremental judicial change is dangerous as it may enable the judges to never articulate precisely the normative justification for what they have done.

Which is why it is the job of others, specifically legal academics, but of journalists and others, to watch the watchmen. Judges must remember their role, and we must acknowledge the limits on their power to create the society each of us would individually prefer.

Robert Stevens is the Herbert Smith Freehills Professor of English Private Law at the University of Oxford.