Exercise 2A. The Chain Novel
The principal sources of English law are statute law – law created through Acts of Parliament – and judge-made law – law that emerges out of cases decided by judges. This exercise is about judge-made law.
Judges make law all the time in deciding cases. Normally the reason why a case has come to court is because the law applying to that case is either uncertain and needs to be clarified, or the case raises a genuinely novel point of law that has not been decided before. Either way, when the case is decided, the judge or judges who decide that case will be making new law. The judges may also take the chance while deciding a case to express some opinions (known in the trade as ‘obiter dicta’, or ‘dicta’ for short) as to what the law is on other issues not directly relevant to that case, and if those dicta are taken up and applied in other cases, then those dicta will also become part of the law.
Now – when judges make law in deciding a case X, they do not do so in a vacuum. They do so against a background of rules, principles and ideas that underlie the decisions in the cases that were decided before case X came along. And a good judge will attempt to decide case X in a way that coheres with, or is consistent with, all those rules, principles and ideas. (Why will a good judge try to do this, rather than just striking out on his own and deciding case X in whatever way seems best to him? Maybe because if all the judges did that, the law would become completely chaotic – and it’s important that the law not be chaotic if it is to help co-ordinate our activities in society (see Exercise 1A).) So a good judge who attempts to decide case X will have to decide – (1) What rules, principles, values and ideas can be said to underlie the decisions in all the cases that were decided before case X came along? and (2) What decision in case X would be consistent with those rules, principles, values and ideas? For reasons we will explore more in the next exercise, different – and equally good – judges may take different views on questions (1) and (2). And that largely explains why different judges – who are all supposed to be applying the same ‘law’ to a given case – may arrive at different conclusions as to how that case should be decided.
The American legal theorist Ronald Dworkin has compared the role of a judge in deciding a case with the role of a writer who is contributing a chapter to a ‘chain novel’. The idea behind a ‘chain novel’ is that one writer writes the first chapter, and then a second writer then reads the first chapter and writes a second chapter that carries on where the first chapter left off. A third writer then comes along and reads the first two chapters, and writes a third chapter that follows on from the first two. And so on, and so on. If the novel is going to be any good, each writer’s contribution must be consistent with what has gone before. So each writer has to come up with an interpretation of the previous chapters that make sense of what has happened in them, and ensure that his contribution is consistent with that interpretation.
The analogy between a judge making law and a writer contributing to a chain novel seems like a good one, and underlies the exercise in this section. Here is a section from Guy de Maupassant’s short story ‘The Diamond Necklace’:
Read the section and then think about how you would continue the story. Doing this exercise involves many of the same skills that a judge has to employ in deciding a case. In particular: (1) the need to pay close attention to the details of what has come before; (2) the need to come up with an interpretation of the story so far that is faithful to those details; and (3) the need to come up with a way of carrying the story on that is consistent with that interpretation.
Having done that, now read a bit more of the story to see how Maupassant carried it on:
Once you have read this section, think again about how you would have carried on the story. You should feel you have fewer options as to how you might carry on the story than you did after reading the first part: the more developed the story, the less flexible you can be about how to carry it on in a way that is consistent with what has happened before. In the same way, judges enjoy less flexibility in deciding cases involving areas of law that are very well-established than they do in deciding cases on areas of law where the already existing caselaw is thin on the ground. Having thought about how you might continue the story of ‘The Diamond Necklace’ after its second instalment, reward yourself by seeing how Maupassant himself finished the story:
(If you are already familiar with the Maupassant story, you can do the same exercise with any other short story – read a bit, think how you would continue the story, then read a bit more, and think how you would continue the story from that point, and so on. You can find a huge number of short stories online here.)
Next page: Exercise 2B. Constructing a Rule