Modern Law Review

THE
MODERN LAW REVIEW

Volume 29 November 1966 No. 6
LIMITS O F JUDICIAL LAWMAKING AND

PROSPECTIVE OVERRULING
TIIE Blackstonian doctrine of the " dcclarntory " function of the
courts, holding that the duty of the court is not to " pronounce a
new law but to maintain and expound the old one," has long bccn
little more than a ghost. From Holmcs and GBny t o Pound and
Cardozo, contemporary jurists have increasingly recogniscd and
articulated the lawmaking functions of the courts. The radical
transformations which, for example, contracts, torts or family law
have undergone a t the hands of the courts have made i t increasingly
difficult to maintain the time-honoured fiction of the declaratory role
of the judge. It is not, perhaps, surprising that it should have been
abandoned more wholeheartedly in the United States than in
England. The profound effects, in all walks of life, of the interpre-
tations of the Constitution by the Supreme Court-a Constitution
which has in theory remained almost unchanged and yet governed
the legal life of thc country for almost two centuries-havc long
created in the United States a picture of the judge and his function
very different from that traditionally cherished in England.2 The
celebrated dictum that " the Constitution is what the courts say it
is " 8 has, if anything, been reinforced by the momentous decisions
rendered by the court during the last decade in such matters as
school segregation, voting rights and the redrawing of c!ection
districts. I n England it may be that sheer respect for tradition, or
1 Commentaries (1808) 16th od., at p. G9.
2 The need to adapt tho roceivod common law of England to the diversity and
dynamism of American conditions also tended to depreciate logislation and
elovnto the formative functions of the courts. " This depreciation of Lhe statute
book was promoted by the preerninenco of casemado, judge-made law in tho
formative first half of tho nincteenth century; and this was reinforced, first, by
tho office-rpprontico system of legal education, and then by the spread of the
case method in the law schools." Hurst, The Growth of Amcrican Law (lO[iO),
at p. 180.
8 Charlos Evans Hughes, lator Chiof Justice of the Unitod States, in a n address
to tho Elmira Chamber of Commerce, 1007 (Addresses of Charles Evans Hughes
190&191G (2d od.), p. 185).
598
VOL. 29 21
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594 THE MODERN LAW REVIEW VOL. 20
perhaps a lingering love for the role of fiction as a major agent in

legal cvolution, is responsible for the survival of an increasingly
untenable doctrine,' which was, moreover, never adopted by some
of the greatest of British judges from Holt, Mansficld and Blackburn
to Wright and Atkin.
The House of Lords itself has now buried the remnants of the
doctrine. In three recent judgments the House has, in quick suc-
cession, asserted its lawmaking function, not in areas of marginal
interpretation but of basic impact. In Shaw's case, the House of
Lords asserted its power to supplement and, by implication, to
depart from the statutory regulation of criminal law, through the
revival of a common law offence called '' conspiracy to corrupt
public morals." 5 I n Hedley Byrne v. Heller the House, not
content with the dismissal of an action for damages because the
defendant had excluded legal responsibility, asserted, in a series
of elaborate per curiam statements, a new legal principle of great
financial importance, i.e., the responsibility of those who negligently
make statements on financial soundness expected to be used by
third par tie^.^ And in Rookes v. Barnard 8 the House revived an
all but forgotten tort of intimidation, and resurrected the tort of
conspiracy for economic disputcs which had been all but buried
in Crofter Handwoven Ram's Tweed Co. v. Veitch.O By establishing
4 Amon rocent judicial pronouncsmonte in favour of the doctrine aro those of

Lord $owitt, a t the Australian Law Convention of 1961: " Pleaee do not get
youreelf into the frame of mind of entrueting to tho judge6 the working out
of a whole new eot of princi lee which does accord with the roquiromente of
modern conditions. Leave t i a t to the legielature, and leave UE to confine
oureelvee to trying to Gd; out what the law in."
Or Lord Simonde: For to me hotorodox , or, as eome might cay, heresy,
is not the more attractive becauee it ie diguilod by the name of reform. Nor
will I easily be led by an undiscerning zeal for some abstract kind of justice
to ignoro our Grst duty, which ie to administer justice according to law, the
law which is oetablished for UE by Act of Parliament or the binding authority
of precedent. The law ie developod by the application of old principle6 to now
circumetanccs. Therein liee its geniue. I t s reform by the abrogation of these
principles is the taek not of tho courts of law but of Parliament." ScruUom
V. Midland Silicones [l902] A.C. 446 at pp. 407408.
It ie not without irony that Lord Jowitt'e remark wae made in criticism of
the attempt by Donning L.J. (ae he then was) to introduce the principle of
liability for ne li ently made financial etstomente, in Candler v. Crane,
Christmas d Co ql851 2 K.B. 104, a dissent that hns now been ndopted by the
ii
House of Lorde in cdley Bume v. Hellct [l004] A.C. 406, whilo Lord
Simonds' refusal to contemplate a role of tho courte in the adjustment of civil
liabilities contraate with the eame learned lord'e ringing assertion of the
ewoeping judicial powor in the Geld of criminal law, made in Shau, V. D.P.P.
[ i g m ] A.C. 220.
5 This aeeertion has opened up one of the moet etirring controversies of recent
timos on the function of the law in general, and of the courte in particular, a8
uardiane of publia morality. See ee ecially Hart, Law, Liberty and Morality
71909); Devlin, The Enforcement of Morals (1005) Chap. 6; Hart, Criminal
Law and the Enforcement of Morality (1906), p. 31 et seq.
0 19641 A.C. 4G6.
i.
7 'or a full analysis eeo Stevens, " Hedley Byrne u. Heller: Judicial Creativity
and Doctrinal Possibility " (1904) 27 M.L.R. 121.
6 1004 A.C. 406.
Q [1041] A.C. 486.
Nov. 1966 LIMITS OF JUDICIAL LAWMAKING 595
legal responsibility for damages in the case of a typical union

action instigated by a union organiser and two fellow employees
designed to coerce the employer (BOAC) into certain behaviour,
the House profoundly modified the legal and economic status of
trade unions, and neutralised the basic provisions of the Trade
Disputes Act of 1000.10 It would strain credulity to assert that
such sweeping modifications of both common and statutory law are
merely " declaratory yy statements, or refinements of the existing
law.11
It is therefore time to turn from the stale controversy over
whether judges make law to the much more complex and contro-
versial question of the limits of judicial lawmaking. The continuing
validity and importance of the basic separation of functions, in a
modern legal system, between the legislative, administrative and
judicial branches of government is no less important than the
admission that the judicial branch does indeed play a vital part
in the evolution of the law. By and large, legislatures must be
responsible for the formulation of general principles of conduct
which are of general, publicly promulgated and prospective appli-
cability to a given community for an indeterminate number of
situations; administrators must apply such general principles to
more specific situations and often to specific groups within the
community-even though administrative orders and regulations
often have certain legislativc aspects; and the courts must apply
the prescriptions of legislators, or the generalised principles deduced
from a series of precedents, to individual disputes. Such a separa-
tion of functions is not confined to the democratic doctrine of separa-
tion of powers; it is part of the essential structure of any developed
legal system.la In a democratic society, the processes of administra-
tion, legislation and adjudication are more clearly distinct than in
a totalitarian society, where legislative and administrative proce-
dures tend to' merge and the judges pre expected to be the
executants of the political ideology of the bovernment. But even
in such societies, the three functions remain generally separate.
10 For a full analysis see Wcddorburn, " Intimidation and the Right to Btrike,"
(19G4) 27 M.L.R. 257. The decieion wae, in turn, partly neutraliaed by the
Trade Dieputes Act 1905, which prov,i,des, inter a h , that an action against a
trade union ... in reepect of any tortioue act alleged to have been com-
mitted by or on behalf of the trade union shall not be cntertained in any
court (a. 4 (l))." It ale0 exempts from liability acte threatening the breaking
of a contract of cmployment, or inducing others to break such a contract.
See Hickling (1966) 29 M.L.R. 33, and Wedderburn, ibid. ot p. 63.
11 See now, for a comproheneive analyeis, Stevens, " Tho Bole,,of a Final
Apponl Court in a Democracy: the HOUEO of Lorde today (1965) 28
M.L.R. 600.
1 2 For recent formulatione of tho eeeential structural requieitee of a developed
legal eyetem, aec a r t , The Concept o/ L a w (196l), p. 9G, and Lon Bullor'e
roquiromente of generality, promulgation and proepcctive operation, whic:
constitute the first three of his ei ht requirements of the " inner morality
of law (Butler, ~ 1 c sMorality of f a t o (1964). p. 41 e t seq.).
It is therefore a matter of both theoretical and practical impor-

tance to inquire into the limits of judicial lawmaking. Only when
we havc admitted that judges do make law, does it become necessary
and possible to distinguish the characteristic aspects of judicial
lawmaking from those of legislative lawmaking.
INACTION
LEGISLATIVE REFORM
AND JUDICIAL
The dilemma of the courts in deciding whether to reform the
law, in the face of legislative inaction, has recently been succinctly
formulated by a distinguished American judge 18 :
" It is now a commonplace that courts, not only of common
law jurisdictions but also those which have codified statutory
law as their base, participate in the lawmaking process. The
commonplace, for which the Holmeses and the Cardozos had
to blaze .a trail in the judicial realm, assumes the rightness of
courts in making interstitial law, filling gaps in the statutory
and decisional rules, and a t a snail-like pace giving some
forward movement to the developing law. Any law creation
more drastic than this is often said and thought to be an
invalid encroachment on the legislative branch. ...
It is the failure or inability of the legislature to act where
therc is, nevertheless, a desperate need for creative law-
making. ... Whether it bc deadlock or a refusal t o face u p
to legislative or political hazards, therc is often a deferral or
refusal to act. Sometimes the reason is strongly based on the
desire to permit the difficulties of the problem to be resolved
judicially by an evolutionary case-by-case approach in the
decisional process, a t least for a time, until the question is ripe
for legislative handling. Sometimes the reason is only the
view that the common law solution is best bccause of nice
technical distinctions and because the need for harmony with
other rulcs of law is deemed paramount. .. . These are some of
the reasons which makc for a strong lawmaking function in
the courts, far beyond the interstitial and the gap-filling. These
reasons, however, do not mean that it is all t o the good and
that courts are best equipped to perform the function. On
the contrary, therc are grave Iimiting factors : the limitations
of judicial procedure, political dependcnce upon other branches
of government, and the isolated nature of the judicial office."
It is a difficult question for a court to decide whether, in the face
of continued legislative inaction, it should intervene to change a
manifestly unjust and outdated legal principle, sometimes a t the
risk of stinging the legislator into retaliatory action, or remain
passive. Certainly the answer cannot be given in terms of subject-
matter. The long overdue rcforin of the principles of liability of
occupiers to visitors could easily have been carricd out by the courts,
by interpretations far less sweeping than those the House of Lords
18 Charles D. Breitol, in " The Lawmakors," Tltc TwenlpSecond Anniia?

Bcnjnntin N. Cardozo Lecture (19GS), a t pp. 32, 88-39.
Nos. 1966 LIMIT8 OF JUDICIAL LAWMAKING 597
used in cases like Bonsor v. Musicians' Union l4 or Rookes v.

Barnard.16 I n the end the law was changed by legislative reform.1e
Such questions as the joint liability of tortfeasors, the immunity of
public authorities (in the United States) from liability for negli-
gence, or the rights of a married woman to occupancy of a matri-
monial home could be and have been the subject of judicial as well
as legislative reforms. In 1060 the Supreme Court of Illinois
decided that it WQB time to do away with the absurd rule of
immunity of local authorities from liability for negligence, in a
typical case where Q bus driver employed by IL local school authority
had negligently injured children riding to school in the bus." But
although the court applied its new doctrine only prospectively,'S
the Illinois legislature was stirred into action and restored the old
doctrine. The Supreme Court of California, which, in 1961, went
even further by overruling thc old immunity doctrine retronctively,lO
was somewhat luckier, in provoking a comprehensive study of the
problem and an eventual legislative reform in 1068. There are
those who would solve the dilemma by generally prescribing judicial
inaction in the face of legislative inaction. This view was pro-
pounded by Professor Henry M. Hart in a symposium on " Courts
and Lawmaking " held in 1068 a t the Columbia Law School 20:
" The Constitution of the United States and each of the
state constitutions prescribe the ways in which bills shall
become law. Failing to enact Q bill is not one of these ways,
even when Q bill has been introduced and voted down. A
fortiori, the failure to act is not an authorized way of making
law when no bill on the subject was ever introduced in the
f i s t place. ...A legislature is a deliberative body. It is an
instrument for arriving a t a consensus, not an instrument for
recording a consensus previously arrived at, as if by some
mysterious emanation from the electorate. To arrive a t a
consensus, the legislature follows an elaborate procedure of
investigation and consideration eventuating in the approval of
a particular form of words QS law. For the courts to treat
the lcgislature as making law by any other means is to treat
this procedure and this agrcement upon a particular form of
words as mere froufrou-without any real function.''
But two such eminent and experienced judges as Chief Justice
Traynor of the Supreme Court of California and Justice Breitel of
14 19501 A.C. 104. 15 [lo641 A.C. 465.

16 bccupiera' Liability Act 1067.
17 Molitor v. Kanelatid Communitu Unit District No. 802, 18 Ill. 2d 11, 163
N.E. 2d 89 (1950). It should be noted that in tho United Stabs, the
discredited doctrine of the eoveroign'a immunity from tort liability has, in
application of tho anciont decision of Russell V. Men of Deuon (1788) 2 T.R.
667, boon carried to much 6rCatCr longths than in England, where etatutory
public authoritios, including school boards, have long been held subject to
suit in tort.
18 On tho meaning of tho princi lo of " proepectivo overrulin " BOO bclow, p. 602.
10 Muslropf v. Corning ElospitafDistriot, 65 Cal. 2d 211, 858'P. 2d 457 (19131).
20 Pauleon (ed.), Legal Institutions Today atid Tomorrow (1959),pp. 46-41.
598 THE MODERN LAW REVIEW VOL.29
the Appellate Division of the Supreme Court of New York are far
less categorical:
“ Le islative inaction, total or partial, in a troubled area,
may ingcate a.rejcction of proposals; or it may indicate a
warrant to the courts to exercise the traditional common law
responsibility of piercing out, case by case, the necessary legal
innovations. Unfortunately there is no rulc of thumb to
distinguish these contradictory indications; the only course is
examination of legislative purpose by investigation of sur-
rounding circumstances and the available legislative history.” 21
“ However timely an overruling secms, a judge may still be
deterred from undertaking it if there are cogcnt reasons for
leaving the task to the lcgislature. There are no ready lists
of such reasons, and a judge has no absolute standards for
testing his own. It is for him nevertheless to articulate the
uneasiness he may feel about judicial liquidation of a precedent,
however ripe it appears for displacement in the timc and
circumstances of the case that has brought it into question.” 22
OF JUDICIALREFORM
FOR LIMITB
CRITERIA
While the general proposition that, in the face of legislative inaction,
the courts should also remain passive has proved unacceptable to
courts of many countries, one observation in Professor Henry Hart’s
critique deserves further attention: ‘‘
To arrive a t a consensus,
the legislature follows an elaborate procedure of investigation and
consideration eventuating in the approval of a particular form of
words as law.” The nature of the judicial function imposes certain
limits upon judicial reform. A few years ago, thc prcsent writer
sought to formulate the basic limitation of judicial reform as
follows 23 :
“ Courts can and indeed are called upon to adjust rights
and liabilities in accordance with changing canons of public
policy. But bccausc they develop the law on a casc-by-case
basis they can not as can the legislature, undertake the estab-
lishment of a new lcgal institution, ‘ an elaborate procedure of
investigation and consideration eventuating in the approval of
a particular form of words as law.’ ”
The following were among thc examples given by way of illustra-
tion : the West Gcrman Constitution of 1040 abolished the statutory
matrimonial property regime of the German Civil Code as incom-
patible with the new principlc of cquality of the sexes. I n the
cxpectation that a ncw statute would by then have been passed,
the Constitution decreed that the old law should ccase to be opera-
tive at a certain date. But for several years after that date thc
21 Breitel. on. cit.. n. 12.
22 Traynor, ‘ I ’ La ‘Ride Vita, La Dolco Qiustizis; or Hard Cases Can Make
Qood Law,” 29 U.Chi.L.Rev. .223, 233 (lOSZ),.,
28 ” Le al Philoao Iiy and Judicial Lawmaking, 01 Colum.L.Rev. 821, 839
(1908;rapriotof in Essays on Jurisprudence Irom tho Columbia Law Review
(1063), pp. 101, 119.
German legislature failed to provide a new matrimonial property

law. Faced with this situation, the Supreme Court of the Federal
Republic applied, as the nearest equivalent to equality, the
regime of separation of property which under the German Civil
Code was to apply where the statutory regime had been excluded
and no other had been agreed upon. But the institutional reform,
which involved a good many complex arrangements on powers,
accounting or liquidation, could only be effected by the legislature.
This was finally done by the new Matrimonial Property Act of 1057.
Again, courts can interpret the word “ children ’’ in wills so as
to reflect contemporary views which no longer penalise illegitimate
children. But they cannot establish new institutions such as adop-
tion or legitimation. By contrast, it was suggested that courts
were perfectly well equipped to abolish outdated distinctions such
as those between ‘‘ governmental ’’ and ‘‘ proprietary ” functions,
between “ invitees ” and “ licensees,’, or between “ administra-
tive ” and “ medical ’)acts as determining the liability or immunity
of a municipal authority, an occupier or a hospital.2s On the other
hand, it was suggested that the substitution of comparative for
contributory negligence, however desirable and justifled, could not
easily be introduced by the courts because “ the effective carriers
of liability are, in the great majority of eases, the insurnnee eom-
panics, and not the nominal parties. Judicial reform would therefore
affect the whole insurance rate structure.” 2o
The view that the kind of law-reforming task which courts cannot
properly undertake is that which requires basic institutional adjust-
ments is supported not only by Professor Henry Hart’s formulation
of ‘‘ an elaborate procedure of investigation and consideration
eventuating in the approval of a particular form of words as
but also by Chief Justice Traynor, who, like Justice Breitel, is
convinced of the need for major and continuous participation of
courts in the lawmaking and law-reforming process, but agrees with
the present writcr “ that the legislature is pre-eminently qualified
to cope with such problems as contributory negligence. There are
many such problems whose resolution entails extensive study or
detailed regulation or substantial administration that a court cannot
appropriately or effectively undertake.” 28
Yet, the distinction between institutional change and the adjust-
ment of Iiabilitics, as a general criterion for what it is proper and
improper for a court to do, is too simple. Not only are there border-
24 Civil Dooieions (B(3.Z) Vol. 11, Appond. p. 06 (19GS).

25 Soe, for oxarnplos of judicial reform in thoso fields, tho docision of tho Court
of Appoal in Cassidy v. Minister of Health [l95l] 2 K.B. 043, and in Razzel
V . Snowball 1954 3 All B.R. 429; and tho Amorican decisions in Bing V .
Thunig, 2 N.h. 2d GGG, 103 N.Y.S. 2d 8 (1057), and Collopy v. Newark Eyc
and Ear Infirmary, 27 N.J. 29, 141 A. 2d 270 (1058).
20 Priodinann, op. cit., n. 28 at p. 841.
27 Soo abovo, p. G07.
28 Traynor, op. cit., n. 22 at p. 233.
600 THE MODERN L A W REVIEW VOL.29
line cases, like Bendall v. McWhirter, where the Court of Appeal

attempted to create a new quasi in rem status for the deserted wife,
by constituting for her benefit an (‘equitable right )’or at least
an (‘irrevocable licence ” to occupy a matrimonial home despite
absence of title.2o There are also cascs in which a .court has-very
much like a legislator-initiated a basic institutional change, and
left it to legislators and administrators to elaborate the basic
principles and work out the necessary institutional adjustments.
This is more likely to occur in federal jurisdictions where a Supreme
Court has the ultimate power of constitutional interpretation and
thus a scope for lawmaking unrivalled in other types of legal
systems. The interpretation of “ due process or (‘equality or
(‘freedom of commerce ” clauses means in effect a power of almost
unlimited sweep to lay down principles of legislation and administra-
tion, in accordance with changing ideas of public policy. Two
famous recent decisions of the Supreme Court of the United States
illustrate the magnitude of such lawmaking-and institution-
creating-power.
I n Brown v. Board of Education ao-a decision that initiated
a period of almost unprecedented legal and social change in the
United States-the Supreme Court held thc racial school segregation
system prevailing in most of the Southern states to be unconstitu-
tional, thus overruling its own earlier doctrine that ‘(separate but
equal ’) educational facilities were compatible with the Constitu-
tion.” Dl This decision set in motion a major reorianisation of
school systems-far from complcted-in which the Federal District
Courts, enjoined by the Supreme Court to supervise and scrutinise
the legislative and administrative changes, act as judicial executants
of the Supreme Court decision. Although the court.here did not
c6 approve a particular form of words as law,” it clearly set a new
institutional pattern, leaving it to state legislatures and adminis-

trators to work out the details under the supervision of subordinate
courts.
I n Baker v. Caw,32the Supreme Court went perhaps even further
in the ordering of new institutional arrangements. Here the court
considered a suit by a group of Tennesseans alleging that they had
been deprived of their federal constitutional rights by lcgislation
classifying voters with respcct to representation in the General
Assembly. The court held these allegations to be justiciable, and
a denial of the equal protection guaranteed by the Fourteenth
Amendment. This decision-which has been bitterly attacked as an
improper judicial interference in matters of political decision-set
in motion a nationwide proccss of redrawing of both federal and
20 1952 2 .B. 466, as rovieed in Wcstminstcr Bank V. Lee [195G] Ch. 7.
L1ho docis& wae ovorruled b tho House of Lords in Natiotral Provincial Bank
80
v. Ainewortlt 1006 9 AH
347 U.S. 483 119542.
dn. 472.
31 Plcssy, v. Fcrguson, 163 U.S. 637 (1837).
82 3G0 U.S. 180 (1902).
state election districts. Again the court, in the course of deciding a

specific complaint, laid down a new principle of the most far-
reaching institutional implications, leaving it to legislatures and
administrative authorities to work out the details.
Another example of far-reaching institutional innovation by a
court decision is the revision of New York criminal procedure caused
by the Supreme Court decision in Jackson v. Dcnno.88 This held
that the existing New York procedure was incompatible with the
Supreme Court's ruling that " a defendant in criminal cases is
deprived of due process of law if his conviction is founded, in whole
or in part, upon an involuntary confession without regard for the
truth or falsity of the confession." 8.1 As a result, the New York
Court of Appeals held that, for future trials, New York State would
adopt '' the so-called Massachusetts procedure described in the
Juckson v. Denno opinion at pages 878-870 United States Reports
' under which the jury passes on voluntariness only after the judge
has fully and independently resolved the issue against the accused
and has made express findings upon the disputed fact question of
voluntariness. 8 5
In both thcse. cases, the institutional and status change was
initiated by the court, and it was left to the other two branches of
government-the legislative and the executivoto elaborate the
change.
More frequent-and perhaps more generally acceptable to juris-
prudential thinking-is a give and take between courts and legis-
lators in the initiation and elaboration of law reforms. Thus,
in the early twenties, when the German mark slumped to unfathom-
able depths, the law courts took the initiative in refusing to uphold
currency nominalism in the performance of contracts. They were
confronted with the fantastic inequities produced by the ability of
landowners, insurance companics, or pension funds to pay off heavy
debts at virtually no cost, while the creditors found the work and
savings of a lifetime reduced to nil. The courts used a general
clause of the German Civil Code, which prescribes that all obliga-
tions arc to be fulfilled '' in good faith," to lay down certain rough
and ready principles of adjustment of obligations. But they were
not in a position to prescribe a detailed scheme of revaluation, which
entailed a .great deal of actuarial, administrative and institutional
arrangements. This WRS later done by statute. Again, the series
of Suprcmc Court decisions which reinterpreted the provisions of
the U.S. Constitution with rcgnrd to civic equality, eventually
resulted in certain institutional and procedural guarantees provided
by thc Civil Rights Act of 1066-which includes the appointment
of Federal Registrars to supervise the fairness of registration of
electors in the states.
88 878 U.S. 868 (1064).
34 At p. 816.
8s Peoplo v. Ificnlley [lG N.Y. 2d 721 (10GG),p. 78.
While it thus remains gcnerally true that courts are not cquipped
to engage in law reforms which entail institutional and administra-
tive arrangements, this does not mean that courts do not a t times
initiate basic legal changes, through the reinterpretation of constitu-
tions, or through bold judicial innovations, which lay the
foundation for subsequent legislative changes.
PRO8PECTIVE OVERRULINQ AND JUDICIAL LAWMAKING

The significance as well as the peculiar characteristics and limitations
of judicial lawmaking are brought out in a judicial doctrine which
over the last thirty years has been increasingly applied and articu-
lated in the American courts-both fedcral and state-but which
appears to be virtually unknown outside the United States. This
is " prospective overruling," Le., the overruling of a well-established
precedent limited to future situations, and cxcluding application
to situations which have arisen before the decision and are thercfore
presumed to be governed by reliance on the overruled principle.
As the Supreme Court of the United States pointed out in a recent
which held that '' the Constitution neither prohibits nor
requires retrospective effcct," a7 and that it was therefore for the
court to decide on a balance of all relevant considerations whcther
8 decision overruling a previous principle should be applied retro-
actively or not,as prospective overruling is clearly not compatible
with the Blackstonian proposition that courts do not '(pronounce
a new law, but ...
maintain and expound the old one." It implies
a clear admission that courts do make new law, and the very posing
of the question whether the new rule should be applied retro-
spectively or only prospectively indicates awareness of its legislative
aspects. I n the legislative process the problem of retroactivity is,
of course, a familiar one, and it is generally, a t least in criminal
statutes, held to be incompatible with the principles of a democratic
system of government.
Despite isolated earlier applications, the principle of prospective
overruling gained a definite and respectable place in American
jurisprudence through a decision of Mr. Justice Cardozo in 1082.3~
In that case the Supreme Court of Montana overruled a previous
decision granting shippers certain rights to recover excess payments
under a statute regulating intrastate freight rates. The Montana
court held that the statute did not create such a right, but that
the old rule should be applied to the S u h m t case and to other
38 LinkIetter v. Walker, 381 U.8. 618 (1965).

37 981 U.S. at p. 629.
38 I n Linkletter tho issue was wlictlier M a p p v. Ohio, 367 U.S. 649 (1961). which
held that evidence illegally seized is inadmissible in a state criminal trial, could
be applied retroactively to convictions obtained boforo this principle ,,was
judicially asserted. Tho court decided, essentially in the interoat of tho
administrat.ion of justico and the integrity of tho judicial process," that tho
rulo of M o p p should not be made retrospective.
30 Great Northern Ry. v. Sunburst Oil 16 Refl,ting Co., 287 U.S. 358 (1932).
Nov. lO6G LIMITS OF JUDICIAL LAWMAKING 608
contracts of carriage entered into in reliance upon the earlier

decision. Thc Supreme Court’s decision, delivered by Justice
Cardozo, is, like the court’s much more recent decision in Link-
an example of the American judges’ much greater readiness
-as compared ,with their English brethren-to apply general
considerations of legal philosophy to problems of the judicial
process d l:
‘(We have no occasion to consider whether this division in
time of the effects of a decision is a sound or an unsound
application of the doctrine of stare decisis as known to the
common law. Sound or unsound, there is involved in it no
denial of a right protected by the federal constitution. This
is not a case where a court in overruling an earlier decision has
iven to the new ruling a retroactive bearing, and thereby
[as made invalid what was valid in the doing.
,
. ..
A state in defining the limits of adherence to precedent may
make u choice for itself between the principle of forward opera-
tion and that of relation backward. It may say that decisions
of its highest court, though later overruled, are law nonetheless
for intermediate transactions. ...
On the other hand, it may hold to the ancient dogma that
the law declared by its courts had a Platonic or ideal existence
before the act of declaration, in which event the.discredited
declaration will be viewed as if it had nevcr been, and the
reconsidered declaration as law from the beginning.
The choice for any state may be determined by the juristic
...
philosophy of the judges of her courts, their conceptions of
law, its origin and nnture. We review not the wisdom of their
philosophies, but the legulity of their acts.” 4 2
Since Sunburst, courts and commentators have been feeling their
way as to the merits as well as the limits of the (‘prospective over-
ruling ” principle. It is now commonplace among contemporary
students of the judicial process that every decision, whether interpre-
tation of a statute or of a precedent, has creative elerncnts, and that
40 The opinion delivcrcd for tho court by Justice Clark refers to Sir Mathow
Hale, Blackstone, Austin, Gray, Holmes and Cardozo.
41 See the observations made by Lord Evcrshod M.R. in an article originally
contributcd to tho Columbia Law Ret&w (Vol. 61, p. 761 et scq. (1961)),
and roprintcd in Essays on Jurisprudence from tlw Columbia Law Reoiew
(19GS), p. GQ et seq. at p. 79:
” Anyono in my country, as in the Unitod States, who wiahea to rcflcct
on tho broad problems of the law’s philosophy and the judicial function in
its exposition will without doubt turn to the writings and recorded lectures
and opinions of tho great American judges and law teaohors of recent times.
T o these authorities all English lawyers, and particular1 English judges,
acknowledge their intlobtcdnoss. I hsvo in tho course o f this paper inadc
rofercnce to notablo living American authoritics. But the names of Amcrican
judges of not long ago are constantly in mind, names like Oliver Wondoll
Holmes, Harlan Stono, Louis Brandois and, cspecially in this context,
Bonjamin Cardozo, whoso lectures, T h c Nature of the Judicial Process, must
always rcmnin a claosic-an assertion that is happily supported by tho recent
announcenient of its publication in England. 1 have to confess that no
English judge in modorn times has providcd any comparablo work.”
42 287 U.S. a t pp. SG4-365.
004 THE MODERN LAW BEVIEW VOL. 20
a greater or lesser measure of change is implied in every act of

interpretati~n.'~Any decision that, for example, widens the legal
responsibility of an employer to an employee, through the narrowing
of the scope of common employment, or the broadening of the
responsibility for independent contractors, alters the law and upsets
somebody's expectations. Whether and when there is scope for a
" prospective overruling " must therefore be a matter of degree.
In the careful analysis of a recent commentator,^' the five values-
of stability, protection of reliance, eaciency in the administration
of justice, equality, and the image of justic-have to be balanced
against each other. In the first place, it is obviously necessary to
distinguish criminal law decisions from decisions in matters of
civil liability. In matters of criminal law-except, probably, those
allocated to the general field of '' public welfare offcnses," which
are essentially in the nature of administrative sanctions and there-
fore subject to different jurisprudential considerations 4J-the
defendant should not be prejudiced by retroactive legislation. The
principle of nullum crimen sine lege is generally held to be part of
a liberal and democratic system of values. By contrast, an improve-
ment in the criminal defendant's position does not meet with this
objection. This is the rationale of the decision of the Court of
Criminal Appeal in R. v. Taylor,40 which permits departure from
precedent (in that case on the question of bigamy) where the effect
is to narrow the scope of the crime, not to widen it. The same
reasoning induced the Supreme Court in Mapp v. to apply
the benefit of the new rule making certain evidence illegal to Miss
Mapp. But counterbalancing considerations of security and
efnciency in the administrntion of justice made the court refuse to
apply the rule retroactively to convictions already obtained. Such
a compromise inevitably causes inequality of treatment, as between
those who happen to have been convicted before the enunciation of
the new rule and the others, including the defendant a t bar.4s
In civil matters, " prospective overruling " has hitherto been
predominantly applied to cases involving the ending of municipal
and charitable immunities from tort liabilit~.~OThe reason is that,
in this type of case, public authorities and institutions are involved,
and that the ending of traditional immunities may provoke public
48 See, for more detailed expositione, among many others, stone, Legal System
and Lawyers' Reasoning8 (1964), especially Chaps. 6 and 8; Frhdmann,
Legal Theory (1964), 4th ed., Chap. 31, 6Ud references there given.
44 Currier, " Time and Change: Prospective Overruling in Judge-Made Law,"
51 VE.L.ROV.,u)1, 294 (1965).
4s See the basic dacieion of the Supreme Court of the U.S. in MorMsette V. U.S.,
34a.U.S. 246 (1059). and the discussion in Friedmann, Law in a Changing
Sooietv (1959), p. 197 et 8e$
40 [ ~ Q ~ aO K.B.
I 868.
47 Supra, n. 88.
48 See, for a eoarcliing analyeis of Linkletter its implications, Mishkin,
" Tho Supreme Court: 1084 Term-Foreword, 70 Harv.L.Rev. 56 (196G).
48 See Currier, op. oit. at p. 918; Mishkin, op. cit. ot p. 71.
Nov. 1900 LIMITB OF JUDICIAL LAWMAKING 605
and lcgislative opposition.JO Prospective overruling in civil cases also

raises another problem: If the rule is only applied to future cases,
excluding thc casc a t bar, prospective plaintiffs will generally have
little incentive in bringing an action. Except for the relatively rare
instanccs of test cases or actions brought by public authorities,
plaintiffsbring actions in their’own interests and not for the sakc of
clarification of legal principle. In some chscs, such qs the Illinois
court’s decision in Molitor, this dimculty was met by extending the
benefit of the new rule to the plaintiff, on the ground that the public
authority had taken out adequate insurance and could not therefore
be prejudiced by reliance on the overruled immunity rule..
Clearly, prospective overruling, while a welcome acknowledg-
ment of the lawmaking function of courts, opens up as many
difllcultics as it solves. It must remain confined to relatively few
situations, of exceptional imp0rtance.5~
It is unlikely that English courts-still much more strongly
wedded than American courts to the Blackstonian doctrine-will
adopt, eo nomine, any theory of cc prospective overruling.” But
the House of Lords, in one of its recent major lawmaking decisions,
found another way of doing virtually the same thing. In Hedley
Byrne, the House of Lords could have been content to dismiss the
action on the ground that the defcndants had excluded any legal
responsibility for their statement. It chose instead to enunciate,
in a series of elaborate opinions, a future principlc of responsibility
for financial statements negligently made under circumstances in
which third parties can reasonably be cxpccted to rely on them.
The House of Lords overruled Candler v. Crane, Christmas 4 Co.
with respect to future situations. And while it has been suggested
that the entire series of judgments may be dismissed as obiter dicta,
this is unlikely. The decision thus operates in effect as a
‘(prospective overruling.”
ALTERNATIVE ROADSTO LEGALREFORM
I n conclusion, reference may briefly be made to two alternative ways
of lessening the dilemma of judicial lawmaking. One is the expanded
use of the declaratory judgment. Many years ago the late Sir Ivor
Jcnnings 52 pointed to the importance of declaratory judgments,
50 This ie indeed what happened in Molitor (Illinois) and in Muskopf (California),

although in the latter case the end result was legislative reform broadly in
accordance with the new judicial principle.
5 1 See Mishkin, op. cit. at p. 61, who, after having pointed out tho problems
$ a t a generalised application of prospective ruling would present to the
essential function of courts which roquiree that the noFal mode of judicial
operation be retroactive,” suqgests that these difficulties do not constitute a
barrier to occasional, sporadic, and unpredictable rosort to such prospective
limitation. But they do exert substantial force against any generalkod or
regularized invocation of such power.’’
52 ” Declaratory Judgments against Public Authorities in England,’’ 41 Yale L..J.
407 (1991).
especially in the ascertainment of the legal powers of public autho-

ritie~.~ Some
~ years later, the present writer suggested that the
declaratory judgment “ m a y well develop into one of the most
important means of ascertaining the legal powers of public autho-
rities in the intricate mixture of public and private enterprise which
is bccoming a distinctive feature of both British and Australian
life.” But while local authorities can obtain clarification of
important legal issues by such means, and while public prosecutors
can, within limits, emphasise issues of public interest in the selection
of cases for prosecution, the ordinary civil litigation still depends
upon the interest of a particular plaintiff in risking the expense and
dclay of a civil action to obtain a certain result. To some extent,
representative lawsuits, e.g., an action against a local authority
brought on behalf of a group of residents or taxpayers, may mitigate
the chanciness of such procedure as a means of developing the law.
But in most civil actions, thc prevalence of the litigation function
between particular parties will restrict the lawmaking function of
the courts; and, as we have seen, the rule of prospective overruling
can a t best have limited application.
Apart from the declaratory judgment, it is rccourse to c more
systematised form of legislative law reform that can ensure a more
methodic procedure of law revision, especially in the field of
(‘lawyer’s law.” This is the purpose of the new Law Commissions
for England and Scotland.55 Law revision committees in Britain
have becn responsible for a number of important reforms in the
field of lawyer’s law since the mid-thirties, and in some American
jurisdiction^.^^ But the activities of ad hoc law revision committees
have, on the whole, remained too sporadic to be adequate for the
increasingly complex and pressing business of legal reform. The
morc important law reforms, such as the reforms of divorce law and
of criminal procedure have generally been entrusted to ad hoc law
revision cominittccs (as has until now been the case in England).
The most important institution in the United States concerned
with law reform is the American Law Institute-a highly respected
non-governmental permanent institution, supported by all branches
of thc legal profession. The Institute has a small permanent staff
aided by a director of high renown.J1 Although the task of the
American Law Institute is the ‘‘ restatement of the law,” i.e., the
rcformulation of the various branches of the law, in the form of
53 As noted earlier, the major field of application of proepoctivo overruling in

the United Stntos has been the immunities of public authorities and cliaritable
hoepitala, apart from iaeues of criminal procodure in the federal sphoro.
54 L a w and Sooial Chatigc in Contentporary Britain (19G1)st p. 218. See now,
for a comprehensive analysis, Zamir, The Declaratory Judgment (1962).
JJ Law Commission8 Act 1906.
30 New York and California. On the Now York Law Revision Cornmipion,
which lins remained a body of rather mfpor eignificance, Bee MacDonald. The
Ncw York Law Rovieion Coinmiseion (IQGG) 28 M.L.R. 1.
51 At prceent this ie Professor Herbert Wecheler of the Columbia University
SCllOOl of Law.
modcl codes, uniform codes, and systematic re~tatements,~B it has

been a major agent of reform. The process of codification and system-
atisation involves change as well as clarification. Moreover, the
model codcs often embody major reforms, such as the abolition of
thc criminal offence of homosexuality between consenting adults in
the Model Penal Code-very much on the lines of the recommenda-
tions of the Wolfendcn Committee and thc recent British legislation on
this subjcct. Thc model codes and uniform codes are the product
of many years of preparation and successive drafts in which the
academic legal community plays a prominent part. The Uniform
Commercial Code-designed to be adopted without any substantial
change, so as to ensure uniformity of commercial transactions-and
the Model Penal Code designed as a model for state legislation which
may adopt some but reject other parts-are perhaps the best known
examples of systematic reforms alrcady adopted by n number of
states and likely to be adopted by many more. The semi-official
activities of the American Law Institute are the nearest parallel
to the recent British legislation in the field of law reform. The great
advancc of the Law Commissions Act lies in the establishment of
a body of full-time and high-level Law Commissioners whose task it
is '' to take and keep under review all the law ...
with a view to
its systematic dcvelopment and reform, including in particular the
codification of such law, the elimination of anomalies, the repeal
of obsolete and unnecessary enactments, the reduction of the
number of separate enactments and generally the simplification and
modernization of the law." For this purpose an elaborate procedure
of preparatory studies and channels of communication with the
Lord Chancellor and Parliament is provided. It is too early to say
whether the hope expressed in these columns will materinlise that
this new machinery, " if effectively used, should enable rules of law,
as well as those of common law, equity and of the statute book,
devised to meet the requircments of earlier ages in which needs were
different, to be changed or moulded so as to provide a flexible and
suitable system for our own day, and, indeed, for periods to
come." What cannot be doubted is that only a procedure of
this kind can lessen the judicial dilemma: i.c., either to continue to
apply outmoded and inequitable rules, prolonged by prevalent
legislative lethargy in the field of " lawyer's law," or to engage
in law-creating activities which must be sporadic, depend on the
initiative of individuals, and create the dilcmma here surveyed of
doing either too little or too much.
WOLFQANa FRIEDMANN *
58 An example of the latter is a recent restatement of the Foreign Relations Law
o/ the United States.
50 Cliorley and Dworkin, " The Law Cemmiemons Act 1966 " (1905) 28
M.TJ.lL 074.
Da.Jun.; L1.D.; Profeseer of rJaw arid Director of International Legal
Research, Cohmbin Univcreity.

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THE

LIMITS O F JUDICIAL LAWMAKING AND

perhaps a lingering love for the role of fiction as a major agent in

4 Amon rocent judicial pronouncsmonte in favour of the doctrine aro those of

legal responsibility for damages in the case of a typical union

It is therefore a matter of both theoretical and practical impor-

18 Charles D. Breitol, in " The Lawmakors," Tltc TwenlpSecond Anniia?

used in cases like Bonsor v. Musicians' Union l4 or Rookes v.

14 19501 A.C. 104. 15 [lo641 A.C. 465.

German legislature failed to provide a new matrimonial property

24 Civil Dooieions (B(3.Z) Vol. 11, Appond. p. 06 (19GS).

line cases, like Bendall v. McWhirter, where the Court of Appeal

institutional pattern, leaving it to state legislatures and adminis-

state election districts. Again the court, in the course of deciding a

PRO8PECTIVE OVERRULINQ AND JUDICIAL LAWMAKING

38 LinkIetter v. Walker, 381 U.8. 618 (1965).

contracts of carriage entered into in reliance upon the earlier

a greater or lesser measure of change is implied in every act of

and lcgislative opposition.JO Prospective overruling in civil cases also

50 This ie indeed what happened in Molitor (Illinois) and in Muskopf (California),

especially in the ascertainment of the legal powers of public autho-

53 As noted earlier, the major field of application of proepoctivo overruling in

modcl codes, uniform codes, and systematic re~tatements,~B it has

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