| From: | john murphy <john.murphy107@ntlworld.com> |
| To: | 'Jason Neyers' <jneyers@uwo.ca> |
| CC: | Hedley, Steve </O=UNIVERSITY COLLEGE CORK/OU=MSEXCHANGE/CN=ACADEMIC/CN=LAW/CN=S.HEDLEY> |
| Date: | 27/11/2008 12:56:50 UTC |
| Subject: | RE: RE: Denning |
Jason/Steve,
It is a pity no-one else seems
interested. I’ve been fascinated. The best abstract discussion
in ages. For my own part, I don’t see Denning’s affect on
contract (or any other branch of the law) as either all good or all bad.
There are parallels in tor, I think.
Slavish adherence to precedent can be a real hinderance. That’s why
we occasionally get judges making things ina Denning-esque way. Such
instances usually appear in what I call the “rule in” cases. (eg,
the rule in Rylands v Fletcher; the rule in Quinn v leathem; the rule in Wilkinson
v downton). These are all controversial cases in their own way. And
they are not, in my view, wholly bad decisions even if the modern view is to
confine their scope or subsume them under other branches of the law. They
cannot be all bad: they each made at least one litigant happy! That said,
nor are they wholly good. Jurisprudential purists abhor judges doing things
like this. But is being hide bound by precedent always a good thing?
Of course, as Lon Fuller (I think it was) argued, sticking by precedent produces
faith, hope and clarity in the law (and in the legal system more generally).
But is clarity everything? As I’m sure you must both have told your
students in the past, clarity often comes at the expense of justice.
As for your terrific spat/debate, neither
of you, for my money, is DEMONSTRABLY wholly correct in what you say, nor is
either of you DEMONSTRABLY wholly incorrect. I guess agreeing to disagree
was a fair calling of a truce.
John M
PS I think Denning’s style is
over-rated. Often just very short four or five word sentences. No
verbs in them. Clear of course; but technically good English?
From:
Jason Neyers [mailto:jneyers@uwo.ca]
Sent: 27 November 2008 12:26
To: Hedley, Steve
Cc: obligations@uwo.ca
Subject: Re: RE: Denning
I guess we will have to agree to disagree since no one else really
seems interested. BTW, when I wrote that "I am free" that does not
mean that I do the things indicated merely that one is able to do
them in a way a judge is not. So I think that some of my statements about law
can still be trusted.
----- Original Message -----
From: "Hedley, Steve" <S.Hedley@ucc.ie>
Date: Thursday, November 27, 2008 3:35 am
Subject: RE: Denning
To: obligations@uwo.ca
>
>
>
>
|
It just gets better and better ...
“I am free to disagree, ignore and refuse to follow any
case I want in my writing or to be biased against people in my writing
because of their views of the law ...”
Believe me, I’d noticed. But the sticky point is that,
while ignoring the cases and venting your bias as you say, you still claim to
be stating the law! You are entirely free to give your opinion of
what the law should say – but your claim that it is already the law
cuts no ice.
“If I were an intermediate appellate judge or trial
judge (far-fetched I know) I couldn't and wouldn't refuse to follow a Supreme
Court of Canada case because of non-conformity with corrective justice. I
would point out the cases flaws but say I was bound.”
So you agree that someone who is obliged to state the law
accurately must respect precedent. (A point which applies to both judge and
jurist, no?) It follows, doesn’t it, that someone who ignores precedent
has ceased to expound the law? And that their claim to be describing
the law should not be given much credence? If your point about the
judicial oath means that you don't feel obliged to state the law
accurately, then give us a reason to listen to any statements of law you
make.
“I also think that you get the claims of CJ
theorists spectacularly wrong. The claim is not that CJ is being imported
from the outside but that private law is CJ--that CJ is immanent in the
private law in its structure and most basic concepts.”
I’m well aware of what (some) corrective theorists claim.
(Actually, many of them are more reasonable.) You have said nothing to render
this extreme claim believable. And as you have made very clear, the claim
involves intellectual devices (such as ignoring precedent) which you loudly
condemn in others. The claim is starkly implausible. If after a lifetime in
court Denning’s intuitions are still “imported from the
outside”, then how precisely is your own view “immanent” in
the law? Which has a more solid basis in the law and legal practice? Which is
more likely to stem from an understanding of how the legal system actually
works? Which is more likely to respect the legitimate interests of litigants,
rather than an abstract political philosophy written for another era?
“Some of the mistakes or mis-descriptions of the cases he
gave were so egregous that it is hard not to conclude that they were
purposeful if Denning was intelligent as it appears he was.”
Jurists in glass houses ...
“If not following binding precedents as an intermediate
judge or favoring one group of litigants over another (as you pointed out he
did) is not an example of bad faith judging what is? What in the ordinary
meaning of the words is bad faith judging or is there no such thing?”
Well, if you want, we could have a serious conversation about
how judges should act in developing the law for the world in which we
live – I’m game. But I expect you’ll just claim that
anything other than wholesale application of corrective justice is
unacceptable – as usual.
Steve Hedley
From: Jason Neyers
[mailto:jneyers@uwo.ca] Jason Neyers
I find it very hard to make sense of this.
Much of it consists of some rather doubtful guesses as to
Denning’s motivations and thought-processes, which can only remain
in the realm of speculation.
Even more of it is internally inconsistent. Denning is
criticised both for indifference to results – “it is corrosive
when judges start claiming that the law is no better than flipping a
coin” – and also for caring too much – “A judge
judging in good faith should be indifferent to the results ... which is not
the sense that you get from Denning's judgments”. At least one of
those criticisms must be wrong.
The other criticisms are rather general-purpose, and could be
made of almost any view. For example, as an exercise, read them as
criticisms of those who espouse corrective justice. Surely it could equally
be said of those theorists that:
1. They come to the cases with an “agenda” from
outside the law, and are “guided by [their] sense of what was right and
wrong extra-juridically to which [they] would make the law conform”.
Indeed, they are quite open about this, and rely heavily on Aristotle, who
knew many things, but was necessarily ignorant of common law.
2. They are less-than-respectful of precedent. Corrective
justice is treated as the criterion for whether decisions are right, and
cases inconsistent with it are condemned as wrong. Discussion of binding
precedent is rare in that connection, presumably on the ground that a case
which requires a wrong result must itself also be wrong. (An argument that
not even Denning dared use, I think, though he came close at times.)
3. They deliberately seek out issues that allow them to promote
and defend their views. Well, obviously. And why not?
4. They give no sense that they are constrained by law, unless
we mean a law that fits in with their preconceptions of what the law should
be. The frequent judicial references to public policy, and other remarks
inconsistent with corrective justice, are not taken as evidence against the
theory, but are condemned as judicial delinquency. In short, the corrective
justice theorists only feel constrained by the law when they agree with it
– rather like Denning, in fact.
If you feel, as do I, that none of these points invalidates
corrective justice, then I cannot see why they invalidate Denning’s
contribution to the common law.
As to “good faith”, the term is plainly not being
used here in any ordinary sense (and presumably Jason means to refer to
Steven Burton, not Heyman). “Good faith” is used in many senses,
and without further explanation the charge is quite close to
meaninglessness. I remain in the dark as to what Denning is really
being accused of.
I therefore do not feel that Jason’s views have yet
received their most complete articulation.
Steve Hedley
Jason Neyers
I appreciate that it’s traditional to have a Christmas
punch-up on either ODG or RDG, though I think Jason is being a bit blatant in
starting this one.
“Denning was a menace” – Some think so –
others think he was a welcome antidote to the stuffiness that pervaded the
English courts in his time. Of course, stating it in such vague and emotive
terms makes it very hard to have a rational debate about it. If Jason wants
to come out with a more precise and meaningful statement, we can see what we
think about it.
“He did not judge in good faith” – this would
be a serious accusation indeed, if it meant anything. I suspect however that
Jason has some jurisprudential point in mind, rather than anything which most
people would call an issue of good or bad faith. We just have to accept that
we differ on many fundamental points. I am several light-years away from
Jason’s assumptions about law, but wouldn’t dream of saying that
this made his utterances “bad faith”. What on earth can Jason has
in mind, that such strong language is called for?
“…and is therefore corrosive of the rule of
law”. Denning’s general judicial style was simply a throw-back to
the typical style of a century earlier, made more effective by the fact that
he was a good prose stylist as well as an able lawyer. If that is “corrosive
of the rule of law”, then presumably the rule of law had already been
thoroughly corroded in the late 19th century. Or does Jason
have something more specific in mind?
“As Robert noted in his inargural most of Denning's damage
to the law of contract has largely been undone thankfully.” I’ve
not seen Robert’s inaugural yet. If this refers to
Denning’s attempt to increase protection for consumers, I would say
that the problem of the old law was the failure to distinguish sufficiently
between consumer and business transactions – a battle which Denning
won, though the result is now expressed in statute rather than in case law.
But what is the issue?
Steve
Hedley
UCC
From:
Jason Neyers [mailto:jneyers@uwo.ca]
And that's why Denning was a menace. He did not
judge in good faith and is therefore corrosive of the rule of law. As Robert
noted in his inargural most of Denning's damage to the law of contract has
largely been undone thankfully. |
--
Jason Neyers
Associate Professor of Law &
Cassels Brock LLP Faculty Fellow in Contract Law
Faculty of
(519) 661-2111 x. 88435