Questions

Law as the Answer to a Question

By Francis Bennion:

In Part One of this article I suggested that we could make sense of the proposition that a particular law is the answer to a question by constructing a factual outline which would trigger the thrust of that law. How far are we from possessing laws in this ideal form? Perhaps not quite so far as we think. To be effective, any enactment or judicial rule must be framed so as to show what its legal thrust is. It must also show how that thrust is to be triggered by proof or admission of certain facts, which it indicates in outline form.

Legal thrust and factual outline

At this stage of the argument it might aid precision to introduce some definitions. By an enactment is meant a proposition of law contained in an Act of Parliament, statutory instrument, or other item of legislation, as officially promulgated. The term judicial rule is used to denote a proposition of law laid down, whether at common law or by way of statutory interpretation, in the judgment of a court. The legal thrust of a proposition of either sort is the effect in law produced by its application in real life. The sole purpose of an enactment or judicial rule is to achieve a particular legal effect. Thus in criminal law the legal thrust is expressed by saying that where the factual outline is satisfied the person in question is guilty of an offence, to which certain legal consequences (such as liability to a specified penalty) are attached.

The factual outline may be wholly expressed, or partly implied. Thus an enactment may say: ‘a person who does so-and-so is guilty of an offence’. The full statement of the factual outline is however ‘a person with criminal capacity who does so-and-so is guilty of an offence’. The italicised words are left to be inferred. They exclude a child under ten, or older persons with mental impairment such that they cannot form the necessary criminal intent or mens rea.

The factual outline omits facts which are always irrelevant, that is which can never affect the question whether or not the legal thrust is triggered. (A murderer is guilty whether his name is Jones or Robinson, and whether he lives in Balham or Peckham.) It may contain alternatives. Lord Diplock gave the example of buggery at common law, ‘which could be committed with a man or a woman or an animal.(R v Courtie [1984] 1 All ER 740 at 744) Each of its elements is by lawyers either undisputed or doubted. Most elements will be undisputed, except perhaps on the periphery; otherwise the administration of law could not go on. Where a relevant element is disputed the case will turn on which view is held by the court to be correct. Thus if a man charged with murder claims to be absolved because the person he admittedly killed with malice aforethought was non compos mentis, the point of law is concerned only with whether the factual outline of the crime of murder extends to the killing of persons who are non compos mentis.

It is the function of a court accurately to identify the relevant factual outline. The basis of the doctrine of precedent, namely that like cases should be decided alike, requires a correct indication of the factual outline that triggers the proposition of law on actual facts such as those before the court. This most assuredly does not mean, as sometimes it seems to be thought to mean, that a precedent is authority only in relation to the actual facts of the case where it is laid down. In his book Precedent in English Law, Sir Rupert Cross came close to saying this when he insisted that under the doctrine of precedent judgments must be read in the light of the facts of the cases in which they are delivered. (3rd edn (1977), p 4) Lord Halsbury LC did mistakenly say it-

‘Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found. (Quinn v Leathem [1901] AC 495 at 506). So too, as is notorious, did Lord Diplock in Roberts Petroleum Ltd v Bernard Kenny Ltd ([1983] 1 All ER 564 at 567) (see below).

The importance of the factual outline, and the difficulties associated with it, become more marked when a common law judgment breaks new ground. In his famous speech on the duty of care which he delivered in Donoghue v Stevenson ([1932] AC 562 at 599), Lord Atkin was careful to mark out the wider area of relevance (or factual outline) arising from the facts of the case concerning a dead snail in a bottle of ginger beer. The liability in the instant case, namely of a bottler who launches upon the market a sealed bottle of ginger beer containing a decomposing snail, was generalized just so far as Lord Atkin’s careful words indicate-

A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of easonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.

Note that this dictum, while going into detail about the type of product and method of sale, gives no detail about what conduct actually constitutes negligence. This is left as a broad area not, as a matter of law, to be divided up by judicial sub-rules (at least at that stage of its development). Otherwise, as Patrick Atiyah has said-
‘. . . the generalising power of the negligence concept would very likely be lost, because multiplication of specific instances and subdivisions of the law would surely obscure what those instances and subdivisions have in common.(P S Atiyah, ‘The Legacy of Holmes Through English Eyes’ (1983) 63 Boston Univ LR 341 at 356. See also Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 at 758)

Modifying the factual outline

Without a carefully-delimited factual outline, any question of the precise legal meaning of an enactment or judicial rule is likely to be academic. To be exact, it may demand the impossible in asking enquirers to seek within a compact formula the resultant of endless possibilities. The unlikelihood of achieving this explains that dislike frequently displayed by judges for hypothetical questions of law. (See, eg, Re Rowhook Mission Hall, Horsham [1984] 3 All ER 179 at 191) The dislike was illustrated by the Lords’ rejection of a clause, in what became the Rating and Valuation Act 1928, which would have empowered the relevant Minister to refer to the High Court questions of law unrelated to specific facts. (See C K Allen, ‘Administrative Consultation of the Judiciary’ (1931) 47 LQR 43) The rules as to criminal insanity laid down in M’Naghten’s Case ((1843) 10 Cl & F 200) under the former practice whereby the judges could be called on to advise the House of Lords are an example of the inadequacy of judicial decisions unrelated to a factual outline. Yet Parliament often refrains from spelling out detail; and judicial rules, even where judges attempt a generalization, tend to be unduly constrained by the actual facts of the case in which they are laid down.

These considerations mean that a court is often required to modify the factual outline handed down to it. If the facts of the case before the court fit literally within this outline but demand amendment of the legal thrust of the rule, the outline is too broadly stated. If on the other hand the facts of the case do not fit into the outline, but do call for the same legal response, the outline is too narrow.

The factual outline laid down by an enactment is often too wide for juridical purposes. Grammatically it includes, or may be thought to include, some factual situations which are, and others which are not, intended by Parliament to trigger the operation of the enactment. Alternatively, the statutory factual outline may be thought to need clarification, for example by the finding of implications. In either case it is for the court to modify the literal factual outline. Such modifications become by the doctrine of precedent what may conveniently be called sub-rules in elaboration of the proposition of law as it previously existed.

Again it is open to a subsequent court, asked to follow such a common law precedent as Donoghue v Stevenson, to assert that the judicial generalisation of facts (or factual outline) went wider than was justified. Equally, a subsequent court may declare on the other hand that the generalisation should have gone wider still, as indeed happened with the developing tort of negligence. Subject to these possibilities, the decision stands as a guide to the proposition of law in question. It must however be stressed that in most cases the court will have shrunk from expressing any such generalisation as Lord Atkin most helpfully laid down in the passage cited above. This judicial reluctance is unfortunate for the development of the law, and its clarity.

In Roberts Petroleum Ltd v Bernard Kenny Ltd ([1983] 1 All ER 564 at 567) Lord Diplock complained that:

“Even when making successive revisions of drafts of my own written speeches for delivery on appeals to this House, which usually involve principles of law of wider application than the particular case under appeal, I often find it necessary to continue to introduce subordinate clauses supplementing or qualifying the simpler, and stylistically preferable, wording in which statements of law have been expressed in earlier drafts.”

The clear but remarkable implication of this is that decisions of the House of Lords are relevant only to the particular facts of the instant case. In this the dictum can be regarded only as an aberration. If accepted as good law it would import an unthinkable rejection by the Law Lords of the very constitutional function appellate judges are appointed to fulfil. Lord Diplock came very near such a rejection when in the same speech he said ‘The primary duty of the Court of Appeal on an appeal in any case is to determine the matter actually in dispute between the parties. ([1983] 1 All ER 564 at 567) Lord Diplock complained about having to qualify broad statements of law. But no judge is obliged to qualify such statements unless they constitute a factual outline that goes too wide (or too narrow) to accommodate the legal thrust in question; or unless they misrepresent the legal thrust.

Sometimes such judicial findings are disputable. In R v Caldwell ([1981] 1 All ER 96) Lord Diplock surprisingly laid down an objective test for recklessness in criminal law. The provision in question was the Criminal Damage Act 1971 s 1(1), a selective comminution of which relative to Caldwell reads: “A person who without lawful excuse damages any property belonging to another, being reckless as to whether any such property would be damaged, shall be guilty of an offence.”

Lord Diplock laid down a sub-rule as to the meaning of ‘reckless’ here. The following restates this limited version of s 1(1) to include the sub-rule:

(1) A person who without lawful excuse damages any property belonging to another
(2) being reckless as to whether any such property would be damaged
(3) that is by doing an act which in fact creates an obvious risk that the property will be damaged
(4) without giving any thought to the possibility of there being any such risk
OR
(5) recognising that there is some risk involved and nevertheless going on to do the act
(6) shall be guilty of an offence.

Lord Diplock in Caldwell was faced with a simple choice. He could have ruled that recklessness, like negligence, is a pure question of fact for the jury. He rejected this, and elected to lay down a sub-rule by way of modification of the statutory factual outline. He was not obliged to do so, but it was his right if he saw fit. It is well recognised that courts are entitled to elaborate statutory broad terms in this way. For a criticism of judicial elaboration of such statutory concepts as recklessness see F A R Bennion, ‘Leave my word alone’ (1981) 131 NLJ 596. Robert Goff LJ expressed his ‘unhappiness’ at having to follow the Diplock ruling in Elliott v C (a minor) [1983] 2 All ER 1005 at 1010. The ruling was ultimately reversed in R v G [2003] UKHL 50.

Use of processed terms in other legislation

A grasp of the juridical significance of the factual outline may save us from error in another respect.

In Hanlon v The Law Society (1980] 2 All ER 199) the House of Lords agreed with Lord Denning MR’s view in the court below that the phrase ‘recovered or preserved’ as used in the Legal Aid Act 1974 s 9(6) bore the same meaning as it had been given by judicial processing when used in the Solicitors Acts. Only Lord Simon struck a discordant note-
‘The words in the Solicitors Acts have been liberally construed, consonant with the obvious parliamentary intention of promoting the interest of a solicitor whose activity has resulted in a proprietary benefit to his client. But the same liberal approach to construction is not appropriate in a measure imposing a charge for a social service: the words should certainly not be extended beyond the ordinary sense which is appropriate in the context.'(P. 216)

This dictum shows that Lord Simon had understood a distinction that appears to have escaped his colleagues. By choosing a processed broad term from similar if not identical legislation, the draftsman may have meant it to be given the same construction. In that case he should perhaps have said so (though it is not drafting practice to attract processing expressly). For while use of a processed term in later legislation may betoken an intention that it should have the same meaning, the interpreter always needs to remember that the factual outline laid down by the two enactments will be different, and this may well affect the legal meaning of the processed term in the second place where it is used.

In this particular instance, the result arrived at by Lord Simon’s colleagues may well have been correct. The point can be tested in this way. Suppose A and B successfully sue to recover property. A is legally aided, while B is not. The court might well be called on to construe the Legal Aid Act 1974 s 9(6) in relation to A and the Solicitors Act 1974 s 73 in relation to B. Can it be supposed that it would give ‘recovered or preserved’ different meanings for each? The answer was provided by Lord Lowry: “I cannot imagine different answers being appropriate, depending on whether questions arose under s 9(6) or under s 73”.(P. 216)

It was suggested at the end of Part One of this article that the ideal law would be worded If the state of facts fits the factual outline ffffff, then the legal thrust is tttttt. We examined above the substance of this universal answer to questions of law people seek to have answered. Now finally we return to its form.

Under our system it has no settled form. Sometimes a relatively simple enactment will begin ‘Where …’ or ‘If …’, and then we know a statement of the factual outline is about to follow. For example the Law of Property Act 1925 s 151(1) says: “(1) Where land is subject to a lease-
(a) the conveyance of a reversion in the land expectant on the determination of the lease; or
(b) the creation or conveyance of a rentcharge to issue or issuing out of the land;
shall be valid without any attornment of the lessee …’

Here the factual outline is simply ‘where land is subject to a lease’. Indeed that may be too simple, for the reader will probably need to know what are the legal meanings of the expressions ‘land and ‘lease’. These must be sought elsewhere.

There are two distinct legal thrusts here. Let us look at the first. The conveyance of a reversion in the land expectant on the determination of the lease shall be valid without any attornment of the lessee. Again this contains several terms whose precise legal meaning the reader may need to seek elsewhere. Nevertheless this form of statement is on the right lines. It clearly distinguishes the factual outline and the legal thrust. It is not fully comprehensive, but then few such statements could hope to be. Moreover it is equally apt for the statement of a common law rule. It is the answer to the question Where land is subject to a lease, is the conveyance of a reversion in the land expectant on the determination of the lease valid without any attornment of the lessee? We see that this law at any rate is the answer to a question. The same, I believe, applies to any other law.
If this is the best form in which to present a law why is it not more often employed? In the case of judgments it is scarcely employed at all, for many of our judges do not see the need of it. In the case of legislation it is employed rarely, for many of our drafters do not see the need of it either.

Judges are distracted by their duty to determine the lis, or issue between the parties. The legal argument presented to them is often inadequate, for busy advocates have little time for thorough research. For both judges and counsel the lists are congested, and the next case beckons. So judges do not feel confident that they can adequately present their findings of law in this ideal form.

Drafters are also busy, and not looking for ways of extending their task. What needs to be said in modern legislation tends to be highly complex, not lending itself to straightforward propositions such as the Law of Property Act 1925 s 151(1). Adding to or amending a vast mass of confused legislation, the drafter feels little inclination to attempt any improvement in the system.

And yet (as has been said repeatedly in this article) a law, any law, is in very truth the answer to a question. The trouble is that it is not usually presented in the form of an answer to a question, and there seems little prospect that this will change. Between the question that exists, and the answer to it that in some sense exists also, there is interposed the opaque barrier constituted by our inadequate legal materials and methods.

The solution can only lie in some form of processing of these materials to convert them to a form more near to the ideal. Over the years I have suggested various possible methods for this, but so far with little response. Meanwhile it is important that the new generation of practitioners should be trained to understand the true nature of the law they will have to deal with, and how it should ideally be framed. In time this new generation will populate the bench, the chambers, and the drafting office. Then, if they have been properly taught, things may improve.

[Published in 168 JP (7 February 2004) 84, 107.]