Lectures on the Relation between Law & Public Opinion in England: During the Nineteenth Century

By A. V. Dicey | Go to book overview

LECTURE XI
JUDICIAL LEGISLATION

MY purpose in this Lecture is, first, the description of the special characteristics of judicial legislation1 as regards its relation to public opinion; and, next, the illustration, by a particular example,--namely, the changes in the law as to married women's property,--of the way in which judge-made law may determine the course and character of parliamentary legislation.


I. The Special Characteristics of Judicial Legislation in Relation to Public Opinion

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 rules2 to be collected from the judgments of the

____________________
1
See Ilbert, Legislative Methods, pp. 6-8; Pollock, Essays in Jurisprudence and Ethics, p. 237; Pollock, First Book of Jurisprudence ( 2nd ed.), Pt. II. ch. vi.
2
These rules will assuredly be enforced by the Courts, and are therefore laws. True indeed it is that the function of an English Court is primarily to decide in accordance with legal principles any particular case which comes before it. It is the interpreter, not the maker of a law. As, however, "it may with equal verbal correctness "be affirmed in one sense, and denied in another, that interpretation "(whether performed by judges or by text-writers) makes new law"

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