We are used to the idea that the common law of England, which is the foundation of judicial systems in many places besides England, is a ‘judge-made’ system. But judges could not do their job if they thought that they were merely inventing the law. In the famous 1865 case of Rylands v Fetcher, the Court of Exchequer Chamber gave judgment in the following words of Mr Justice Blackburn: ‘We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape’. This rule, the judge added, ‘seems on principle just’.
Until Rylands v Fletcher, however, no such rule had ever been formulated. The facts of the case arose in the context of new industrial activities, generating serious public anxiety, along with conflicts that had not been tried at law. Did Mr Justice Blackburn merely invent the rule, therefore? If he did, then Mr Rylands was penalised by an act of retroactive legislation – in other words, by the invention of a law of which he could have had no prior knowledge. Surely that would be a flagrant injustice. But notice the judge’s words: ‘We think that the true rule of law is…’. In other words, in Blackburn’s own eyes, he was not inventing the rule, but discovering it. And such was the opinion of the House of Lords, in upholding his judgment.
Although still a leading case in tort, Rylands v. Fletcher is as controversial today as it ever ways. It was extensively discussed by the law lords in the case of Transco v StockportMBC [2003} UKHL 61, in which considerable doubts were expressed by Lords Bingham and Hoffman as to the advisability of a judicial decision which in effect creates a tort of strict liability. Moreover the law lords seem to be in little doubt that the word ‘creates’ there is the right one – a clear sign that the influence of common law has dwindled comparable to that of statute. If common law is made, and not discovered, at the time of first declaration, then it seems only just that torts of strict liability should be created by Parliament rather than by the courts, so that we have due warning of the consequences of our acts.
In response to those arguments I offer the following thought. English civil law has arisen not only through common law courts but also through equity, which was originally administered by the Court of Chancery. And it is through equity that common law justice is best understood. What the petitioner in equity seeks is a remedy. He or she is not, primarily, asking the court to formulate an abstract principle of law, of a kind that it would be reasonable to demand of the legislature. Petitioners come to the court because they have suffered damage and are asking the court for a remedy – which may take the form of injunction, compensation or a declaration of trust. The remedy is granted because it is just, and because it seems to be directly implied by the dealings between the parties. The court, looking back on the case, may discern a rule – a ratio decidendi – which then becomes law. But the important fact is the provision of a remedy to someone who needs it and deserves it. Exactly the same thing happens in a children’s playground, when an injured party appeals to those standing around. The question is not: ‘what is the law?’ but ‘is it fair?’ And if it is not fair, then another question arises: ‘how can this unfairness be rectified?’
I suggest that this is a fundamental principle of common law systems: not that the courts make the law, nor even that they discover it, but that they provide a remedy to the person with a just grievance. The law is a kind of ongoing reflection on this process, and an attempt to translate specific decisions into universal rules. But it is the remedy that comes first, not the principle that may be derived from it.
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