Lobban on Legal Theory and Judge-Made Law in England, 1850-1920

Legal Theory and Judge-Made Law in England, 1850-1920 has just been posted by Michael Lobban, Queen Mary, University of London. It is forthcoming in Quaderni Fiorentini vol. 40 (2011) pp. 553-94.  Here's the abstract:

Many nineteenth century jurists agreed that John Austin’s separation of the spheres of law and morality lay the foundations for a scientific analysis of law. However, they remained uneasy with his definition of law as the command of a sovereign, preferring to speak of rules enforced by the state. The jurists who succeeded Austin strove to analyze law in terms of rules enforced by the state, and used Austin’s tools to put order to the mass of common law materials. However, when it came to discussing how judges should develop the law, they continued to defend the interpretive approach distinctive of the common law tradition. Rather than identifying rules, this entailed applying principles found in older case law to new situations and thereby adapting the law to the changing needs of the community. Consequently, jurists who found Austin’s strict separation of law and morality a useful tool for analysis continued to feel that the interpretative work done by the judges needed to take into account the moral needs of the community, and numerous jurists argued explicitly for a connection between law and morality.

In the debates over codification of the 1860s, many judges and jurists who admired the analytical method which allowed them to make sense of a mass of legal materials resisted the aspiration to put all common law into rules. They explicitly defended the common law as a system of principles. In their view, the problems caused by the proliferation of case law resulted from judges looking to find a rule from every reported case, rather than looking to principles. They therefore argued that efforts should be made to digest the principles of the common law, which would allow the law to continue to develop flexibly by reasoning at case level. In response, a number of analytical jurists argued that if the common law could be seen to generate series of authoritative propositions, they could be codified into rules. For them, a digest was a mere preparatory to a code, where judges would apply and not make law. They specifically linked the analytical project, premised on the separation of law and morality, with the codification project. However, by the 1870s, jurists like J.F. Stephen began to separate the codification project from the analytical one. Instead of needing to find an ideal analytical model, Stephen argued, different areas of law could be codified for convenience. By the end of the century, those who argued for codification no longer felt that it would curtail the role of the judge in developing the law in an interpretive way.

The article ends by briefly looking at three jurists who accepted Austin’s analytical models, while rejecting (in various degrees) his arguments on the separation of law and morals. William Markby, John Salmond and W. Jethro Brown all argued that legal and moral norms were related, if distinct, and that judges were to look to moral sources, including the moral needs of the community, on developing the law.