2004.001 'A Law as the Answer to
a Question' 168 JP 84,107
Part One
Start of page 84 in 168 JP
Author's Note This
article has taken twenty years to write. The first draft, which
mainly consisted of Part One, was written in 1984 and laid aside
because it seemed unsatisfactory. I have been working on the article
at long intervals ever since. In it I criticise Lord Diplock's
1981 decision in Caldwell. When this was at last reversed
in R v G [2003] UKHL 50 it seemed possible to complete
the article, so here it is.
From certain viewpoints, for example
the sociological, a law can easily be seen as the answer to a
question. What persons who find themselves affected by the impact
of some unknown or doubtful law feel a need for is just that:
the answer to a question that troubles them. To arrive at this
answer they need expert help. One of the law student's first lessons
must therefore be that he or she is being groomed to provide clients
with answers to such questions.
What is the question to which a law
is the answer? Generally speaking, it may be framed as: what does
the law have to say about such-and-such a state of facts? This
is not to draw any distinction between a law and the
law, since the latter is but a collective description embracing
each and every manifestation of the former.
Questions and answers
It may make an academic feel uneasy
to be told that a law is the answer to a question. Except in Wonderland,
answers come after questions, not before. We are conditioned to
feel that a law must already exist before any question about its
effect is asked. Otherwise the citizenry is subjected to the ukase
or edict, or in other words palm-tree justice. We do not nowadays
believe in wise men.
Besides, academics exist to instruct
students. How could there be such a thing as a law student if
laws were only answers to questions? The student would have nothing
to study unless and until a questioner came along. Yet the whole
emphasis of the teaching of law is that there exists a corpus
juris or body of law, to which professors and lecturers hold
the key.
No, we are not happy with the proposition
that a law is the answer to a question. Yet the proposition is
in some sense true, so the causes of our unhappiness must be investigated.
The generalised question, it will be remembered, is what does
the law have to say about such-and-such a state of facts?
The first, obvious, point to get
out of the way is that the law may have nothing whatever to say
about a particular state of facts. Or more accurately (since a
negative response is nevertheless a statement), the entire content
of the law's utterance may be: on these facts there is no legal
input. Should I make to stab you with a dagger while we are enacting
a murder charade at some country-house party, the law may have
no positive rule to lay down. (That proposition is expressed conditionally
because, if say I were so clumsy as to spill your blood with my
stage dagger, recourse to legal process might arise even from
so innocent an activity.)
Where the law does have something
positive to say in relation to particular facts then what it says
is, in relation to those facts, 'a law'. The legal system will,
if activated, make clear what it has to say about those facts
firmly and without equivocation. Moreover what it says so clearly
will be backed up by the powers of the state, with brute force
if need be.
This is all true no matter how many
learned doubts the law books express on the point in question.
The effect of a law, when the law is activated, is always made
transparently and emphatically clear. That a law is the answer
to a question may thus have value in rescuing us from a doubt
as to what the law actually is.
But, it may be objected, the result
of a case is not a law. It is the product of a law. The given
answer to the question posed to the court by those involved in
a particular lawsuit cannot be called a law. It is the humdrum
result of applying a law.
That is the received view, and it
may be right. But something fruitful could possibly result if
for a moment we brought ourselves to abandon the received view,
and doggedly proceeded upon the basis that a law is the answer
to a question.
Parties and precedents
The parties in a case ask a question
of the court. What on these facts that we lay before you does
the law say? What is the legal result? What order will you hand
down? And the court, in the name of the state, gives its response.
On appeal this may be altered, but at the end of the legal process
finality is reached. The question posed by the parties is firmly
and clearly answered. They depart from the courtroom satisfied
that they know what answer the law has vouchsafed, even if one
or other party is dissatisfied with what that answer does to him
or her.
Is the answer a law? We are taught to believe not. It deals only
with the facts of the instant case. Even if the identical facts
recurred (which is statistically impossible), the doctrine of
res judicata would apply the result only to those parties,
engaged in that litigation.
The doctrine of res judicata is not however the only
relevant doctrine. There is also the doctrine of stare decisis
or precedent, founded on the belief that like cases should be
decided alike. As Blackstone put it:
'. . . it is an established
rule to abide by former precedents, where the same points come
again in litigation; as well to keep the scale of justice even
and
