Judges as Lawmakers: the irish experience

AuthorRonan Keane
PositionFormer Chief Justice of the Supreme Court of Ireland
2004] Judges As Lawmakers: The Irish Experience 1
The life of the law has not been logic: it has been
experience. The felt necessities of the time, the prevalent
moral and political theories, intuitions of public policy,
avowed or unconscious, even the prejudices which
judges share with their fellow men, have had a good deal
more to do than the syllogism in determining the rules by
which men should be governed. The law embodies the
story of a nation’s development through many centuries,
and it cannot be dealt with as if it contained only the
axioms and corollaries of a book of mathematics. In
order to know what it is, we must know what it has
been, and what it tends to become.1
In that famous passage, the greatest of American jurists -some
would say the greatest in the entireAnglo-American tradition –
made it clear,not only that the development of the common law has
been, in the main, the work of judges and not of legislatures, but that
in carrying out that work, they have inevitably reflected opinions
and practices prevalent in the society of their time. Nor, as he
emphasises, should we ignorethe fact that the law may also reflect
what he does not shrink from describing as the “prejudices” to
which judges are as much subject as their fellow citizens. With what
may seem to some an almost brutal degree of realism, he rejects the
optimistic view that would see it as attaining in the hands of
individual judges the level of ideal justice portrayed in the works of
philosophers down the centuries from Aristotle to John Rawls.
In later passages in his seminal work, he gives examples of
concepts dating from a more primitive era which the judges refined
and adapted to meet the verydifferent sensibilities of the society of
their time. Early forms of legal procedure, he says, were grounded in
*Former Chief Justice of the Supreme Courtof Ireland. Text of address delivered to the
National University of Ireland, Galway, Law Society on 1 October 2003.
1Holmes, O.W. Jr., The Common Law (Dover Publications, New York, 1991), Lecture I:
‘Early Forms of Liability’, p. 1.
2 [4:2Judicial Studies Institute Journal
vengeance: the Roman law started from the blood feud, as did the
German law. The person against whom vengeance was sought
eventually could buy off the feud by the payment of compensation.
What seems to us a primitive concept becomes transformed into a
system for compensation for civil wrongs to be found throughout the
common law and civil law worlds.2
By an analogous process, doctrines which are still a familiar
feature of the common law can be shown to originate in the practices
of earlier societies which would now strike us as not merely quaint
or naïve but barbarous. In Roman law, the person who owns an
animal which causes injury to another must surrender the animal to
the injured party so that vengeance can be wreaked on the animal
itself. So too, we are still shocked to read, with slaves and children.
The hatred, at a relatively primitive level, of anything that causes us
pain, is reflected in the doctrines of early Roman law. Eventually, the
law becomes transformed into our principle of vicarious liability: the
master no longer has to surrender the body of his servant so that
vengeance may be wreaked on it. Instead, the law obliges him to pay
compensation for the wrongs committed by his servant, even though
the master himself had committed no wrong.
So too, the person who keeps a wild animal is absolutely liable
for any damage it may inflict, even though he has been in no way
Thus concepts in the law of tort, as well known to us as vicarious
liability and absolute liability for injury inflicted by animals known
to be vicious, owe their present form to the courts which moulded
and transformed ancient practices so that they became the legal
doctrines of a moremodernsociety.
Even morestrikingly,we can see the same process at work in the
case of inanimate objects which have caused harm. These too were
subject to what today we would regard as mindless revenge. Holmes
explains the ancient law as follows:
As long ago as Bracton, in case a man was slain, the
coroner was to value the object causing the death, and
2Holmes, O.W. Jr., The Common Law (Dover Publications, New York, 1991), Lecture I:
‘Early Forms of Liability’, pp. 2-3.

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