To many of us, ‘judicial activism’, ‘dissenting opinions’, and ‘concise and comprehensible judgments’ will conjure the image of Justice Kirby. However, having succumbed to my Dad’s insistence that I read yet another of the dusty old books in his study, another great reformer comes to my mind.
Lord Denning, although not necessarily by name, is known to most of us for his involvement in the milestone English High Court case of Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130, which revived the doctrine of promissory estoppel, later to be adopted and developed by our legal system with great significance.
Having served at the Bar, on the benches of the High Court, Court of Appeal, and the House of Lords, and as Master of the Rolls, Lord Denning penned The Discipline of Law. Each chapter is underlined by his progressive jurisprudential philosophy, which continually challenged the status quo of legal decision-making. This rebellious and defiant attitude to precedent and a strict adherence to tradition, as is evident from many a heated class discussion on the topic, not to mention my mooting days, would no doubt strike a chord with many of my law school colleagues!
This book is underpinned by the idea that although legal principles founded by 19th century judges served the best interests of society at the time, they did not consider the inevitable shift in needs and priorities of 20th century society and beyond. It is a personal account of Denning’s own influence on the development of these principles to serve the interests of justice.
Denning discusses the interpretation of the written word, encompassing everything from reading intent into legislation, to the ‘officious by-stander’ in the construction of contracts, and the ‘ghosts of dissatisfied testators’ in the interpretation of wills. His approach can be summed up by the following quotation: “The Judge…should make the law correspond with the justice that the case requires”.
The House of Lords saw this as a “naked usurpation of the legislative function”. As it turns out, many of his less popular dissenting judgments were adopted and codified by the legislature.
The Discipline of Law makes for a fantastic read, and is a wonderful and engaging recollection of a man who paved the way for many significant developments in the law in the 20th century. To simply illustrate the importance of progression, work at converting some of you ‘strict constructionists’, and further whet your appetite, I leave you with the following quote:
“What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on: and that will be bad for both”.
- Denning LJ in Packer v Packer [1954]
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