dictates of natural law, valid legal rules need to be based on a comprehensive
set of moral standards which must underlie human law. These moral standards
can be ascertained by reason. Specifically reason entails delving into
established legal rules and ascertaining by induction or analogy the moral
standard which should apply to the case in question, perhaps with appropriate
modification for the changed circumstances.
Deploying this standard, the court would make what appeared to be a new
rule. In truth, however, it was merely giving legal expression to a moral value
that had always been part of the human condition and the legal order.
This shows how natural law deals with objections that arise when law changes.
If law is universal and unchanging, say the objectors, judges should not “make
new law if there are cases not provided for”.
134
The answer is this. When a
court states a rule of law for the first time there appears to be a new rule, but
there is not really a new rule. Because reason indicates which underlying moral
standard applies in a case and how the standard is implemented as a rule, the
rule has always existed.
135
What appears as a new rule is merely the first
articulation of a rule that was always part of this underlying natural order
136
–
it
is the “enduring aspects of previous reasoning”
137
and in this way has always
been part of common law.
138
This is why it is named the declaratory theory –
___________________
134
Harnett v Fisher [1927] 1 KB 402 at 424, [1927] AC 573. In Baylis v
Bishop of London [1913] 1 Ch 127 at 137 Farwell LJ said: “It is in my
opinion impossible for us now to create any new doctrine of the common
law”. By contrast Lord Denning said in Attorney General v Butterworth
[1963] 1 QB 696 at p 719 “that there is no authority to be found in the
books, but if this be so all I can say is that the sooner we make one the
better”.
135
Willis v Baddely [1892] 2 QB 324 at 326
136
The law was said to rest in gremio judicium, in the bosom of the
judges. As illustrations of this response, see Willis v Baddeley
[1892] 2
QB 324 at 326 per Lord Esher MR, and Harnett v Fisher [1927] 1 KB 402
at 424 per Lord Scrutton LJ.
137
Brett Walker SC "Expressions of justice worth hearing" in The Sydney
Morning Herald, 29 July 2002, p 13.
138
To illustrate, in Donoghue v Stevenson [1932] AC 562 at 580 Lord
Atkin created the tort of negligence. To do this he drew on the moral
precept “that you are to love your neighbour;” this becomes in law that
“you must not injure your neighbour”. (This quotation not only shows
judicial consideration of the moral basis of negligence, it also shows that
this basis has limits. Otherwise all departures from the moral code would
be treated as tortious.)
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