published a directory of prostitutes which indicated to readers both how they
could contact each of prostitutes and the services that each would perform.
For this, Shaw was convicted of the alleged, and until then unknown, common
law offence
of conspiring to corrupt public morals. In upholding the
conviction, four of the Law Lords
held that courts have a residual power to
superintend offences which are prejudicial to the public welfare (with Lord
Reid in a notable dissent on this point). The majority built their argument upon
the notion, put forward by Lord Mansfield almost two hundred years earlier,
that the courts are "guardians of public morals" and that they ought to restrain
and punish "whatever is contra bonos mores et decorum" (contrary to public
morals and decency).
130
Viscount Simonds echoed this in his speech.
131
Citing
Lord Mansfield, Viscount Simonds asserted that “there is in this court a
residual power, where no statute has yet intervened to supersede the common
law, to superintend those offences which are prejudicial to the public welfare”.
He later went on, pointing out first that the vigilance of parliament now ensures
in most cases that criminal offences are created when the need arises.
Nevertheless, his Lordship argued, “gaps remain and will always remain since
no one can foresee every way in which the wickedness of many may disrupt
the order of society”. Thus he was able to assert: “In the sphere of criminal
law, I entertain no doubt that there remains in the courts of law a residual
power to enforce the supreme and fundamental purpose of the law, to
conserve not only the safety and order but also the moral welfare of the state,
and that it is their duty to guard it against attacks which may be the more
insidious because they are novel and unprepared for”.
132
Declaratory Theory
This method of drawing on established values to create what appeared to be
new rules by the process of analogy has been labelled the declaratory theory
of law.
133
It is the explanation put forward by natural law adherents to explain
how, despite an appearance of courts making new rules, they were not really
doing so. They were just declaring pre-existing rules.
The declaratory theory explained this process in the following way. When a
court makes a precedent it
states a rule for the first time. To make the rule it
can, on a wide view, make the rule by invoking any value. But according to the
___________________
130
Jones v Randall
(1774) 1 Cowp 17, p 39 and R v Delaval (1763) 3
Burr 1434, pp 1438-1439
131
Shaw v DPP
[1962] AC 220, pp 268-269, [1961] 2 All ER 446, pp
452-453 per Viscount Simonds
132
Shaw v DPP
[1962] AC 220, pp 268-269, [1961] 2 All ER 446, pp
452-453 per Viscount Simonds. The offence was judicially abolished in
1972 in Knuller v DPP [1972] 2 All ER 898.
133
See Krygier and Glass (1986).
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