¹ See Howarth, , “Negligence after Murphy: Time to Re-think” [1991] C.L.J. 58, 61.Google Scholar

² See e.g. Ogus, , “Do We Have a General Theory of Compensation?” (1984) 37 C.L.P. 29;Google ScholarJolowicz, , “Liability for Accidents” [1968] C.L.J. 50.Google Scholar

³ Abel, , “Torts”, in Kairys, (ed.). The Politics of Law (New York 1982) 185, at pp. 190–192.Google Scholar

⁴ See e.g. Coleman, , “The Structure of Tort Law” 97 Yale L.J. 1233 (1988), at pp. 1240–1247.Google Scholar

⁵ Categorisation by type of damage is the most obvious limitation, especially the general non-availability of compensation for economic loss. For criticism, see Howarth, supra; Markcsinis, and Deakin, , “The Random Element of Their Lordships’ Infallible Judgment” (1992) 55 M.L.R. 619. p. 646.Google Scholar

⁶ Cane, , Atiyah's Accidents. Compensation and the Law (4th ed., London 1987). pp. 411–436.Google Scholar

⁷ See Jolowicz, note 2 above.

⁸ [1990] 2 A.C. 605.

⁹ Ibid, at p. 618A-B, per Lord Bridge of Harwich.

¹⁰ There have been recent suggestions that theory of any sort (the theory of any particular practice) is always irrelevant to the practice which it seeks to explain, in the sense that it can have no influence on that practice (See the essays in Fish, Doing What Comes Naturally (Oxford 1989). especially “Consequences” and “Dennis Martinez and the Uses of Theory”). My contention is that in the case of law, legal theory does play a part in shaping practice, but that it will play a more helpful part the more clearly or systematically it is engaged in by people connected with that practice. The particular type of legal theory which is seized upon here is a theory of adjudication, since this addresses the particular question of how decisions are and should be made.Google Scholar

¹¹ This is the name which Dworkin gives to his model of decision-making in Law's Empire (London 1986). See especially ch. 7, “Integrity in Law”.Google Scholar

¹² Some differences are pointed out in Part IV below.

¹³ These are elaborated in Part IV below, specifically in the Section headed Constraint and the Theorist.

¹⁴ [1932] A.C. 562.

¹⁵ This assumes that not only foreseeability, but also proximity derive from the fault principle, and that the existence of the proximity test was at least initially based on fault, rather than purely on the need to find an extra controlling factor or factors which could be described as something other than “policy”.

¹⁶ Tune, , “Tort Law and Moral Law” [1972A] C.L.J. 247, at p. 249.Google Scholar

¹⁷ Tune, , above, p. 250.Google Scholar

¹⁸ Law's Empire, ch. 11, “Law Beyond Law”.

¹⁹ In general, there is no intention to single out judges as more constrained than other lawyers. No doubt lawyers also work with similar assumptions, but it is nevertheless judges who are most closely involved with decision-making in negligence.

²⁰ [1978] A.C. 728; [1983] A.C. 520.

²¹ It seems worth noting that even at the time of expansion in negligence law which is being discussed here it is questionable how well the Dworkinian model “fits” in some respects. In particular, it was expressly part of the Anns formulation that policy would be expected to trump principle, rather than vice versa.

²² Whether this last was intended to be a variant of the fault principle is controversial, but it is hard to think of any other reason for requiring a voluntary assumption in economic loss cases.

²³ [1992] 1 AC. 310.

²⁴ It should not be implied from this that the distinctions applied are logically convincing, either in Dworkin's version or in actual practice.

²⁵ Although it is undeniable that some constraints are inevitable in making legal judgments, I shall be arguing that some constraints are operative which need not be.

²⁶ Though it need not be: this is explained further below.

²⁷ The endorsement of a statement or a rule is easy, and requires no great personal effort. But one must have a clearer idea of what that rule might mean or have as its objective in order to apply it

²⁸ [1992] 1 A.C. 310.

²⁹ It was admitted by the defendant that the deaths and physical injuries suffered at the ground occurred as a result of the negligence of the police.

³⁰ This accounts for 15 of the 16 plaintiffs: [1992] 1 A.C. 310 at p. 351.Google Scholar

³¹ There is a good example of this in the judgment of Parker L.J. at p. 365: “I would, therefore, whilst having such sympathy for each of the plaintiffs as would lead me if possible to uphold the claim, allow all the defendant's appeals and dismiss all the appeals of the plaintiffs.”Google Scholar

³² Law's Empire, p. 238.Google Scholar

³³ “Shock” of this nature is not, as the term would suggest, either short-lived or subjective in effect; it is a Secondary, long-lasting reaction.

³⁴ [1992] 1 AC. 310 at 400–401.

³⁵ The “floodgates” is understood here to refer to over-extensive liability judged one way or another.

³⁶ See e.g. Chadwick v. British Railways Board [1967] 1 W.L.R. 912;Google ScholarMcLoughlin v. O'Brian [1983] 1 A.C. 410;Google ScholarAttia v. emphasis British Gas Plc. [1988] Q.B. 304.Google Scholar

³⁷ [1983] 1 A.C. 410.

³⁸ This contrasts with the limiting aspect of foreseeability—“no liability without fault”—the role of which is restricted by the fact that so wide a range of damage is foreseeable as the likely result of negligence.

³⁹ Hedley Byrne & Co. v. Heller & Partners Ltd. [1964] A.C. 465. Although Hedley Byrne provides the clearest example of a “category” of negligence cases, it is hard to define that category with much precision. It is also interesting that the Hedley Byrne category has tended to become subdivided as the search for relevant principles becomes more hopeless, and therefore more sophisticated.Google Scholar

⁴⁰ The status of proximity as a principled reason is in no way unassailable in economic loss cases, either. Close inspection of the proximity test in Hedley Byrne type cases has indicated that a coherent explanation of the concepts used to explain decisions in this area is elusive, at least: see Barker, Kit, “Unreliable Assumptions in the Modern Law of Negligence” (1993) 109 L.Q.R. 461.Google Scholar

⁴¹ See e.g. Hevican v. Ruane [1991] 3 All E.R. 65,66 (Mantell J.);Google ScholarRavenscroft v. Rederiaktiebolaget Transatlantic [1991] 3 All E.R. 73, 87 (Ward J.);Google ScholarAlcock v. Chief Constable of S. Yorkshire [1992] 1 A.C. 310,318B (Hidden J.),Google Scholar and 365 C-D (Parker L.J.). The position has been different since Alcock: see the single page report of the Court of Appeal's judgment in Ravenscroft v. Rederiaktiebolaget Transatlantic [1992] 2 All E.R. 470.Google Scholar

⁴² Hevican v. Ruane [1991] 3 All E.R. 65, 68–69.Google Scholar

⁴³ Interestingly, Lord Ackner described the action in Alcock as an attempt to extend the law beyond its present bounds by use of the available legal principles (p. 339 F-G).

⁴⁴ For example, simple categorisation by closeness of family tie. Perhaps it was the threatened arbitrariness of this technique which led the House of Lords to prefer the approach of a “rebuttable presumption”.

⁴⁵ See the wistful remarks of Nolan L.J. at p. 382: “The law of negligence has become so refined that it is difficult to make any general statement without qualifying it: but this much at least I think is still clear, namely that the duty of care does not extend beyond that which is foreseeable.”

⁴⁶ Although Hidden J. also allowed claims by siblings, on the perfectly comprehensible grounds that their existence and their closeness to the particular sorts of people present at a football match were wholly foreseeable.

⁴⁷ This, of course, came too late for the particular plaintiffs in issue, because they had not thought to bring any evidence of how much they loved the ones they lost or feared losing. In particular, Brian Harrison, who was at the ground at the time of the incident, was nevertheless denied compensation because there was no evidence as to the strength of any affection between this plaintiff and his two brothers, both of whom died at the ground. Lord Ackner commented (at p. 400A) that “The quality of brotherly love is well known to differ widely”, so that in the absence of special evidence the nervous shock suffered must have been unforeseeable.

⁴⁸ Lord Keith of Kinkel, Alcock [1992] 1 A.C. 310 at 397 C-D.Google Scholar

⁴⁹ Both might be captured by reference to the “indeterminate” nature of the liability.

⁵⁰ See Goff, Lord in Smith v. Littlewoods Organisation Ltd. [1987] A.C. 241, 280, for a frank account of some such attempts.Google Scholar

⁵¹ Lord Scarman rejected the role of policy despite the currency at that stage of the Anns test, enshrining policy explicitly as stage two of the two-stage test.

⁵² Scarman, Lord, McLoughlin v. O'Brian [1983] 1 A.C. 410 at 431 C-D.Google Scholar

⁵³ Law's Empire, pp. 228–238.Google Scholar

⁵⁴ The connection between Dworkin's enterprise and Gadamer's hermencutics is explored by Douzinas, McVeigh and Warrington, , Is Hermes Hercules’ Twin?, in Hunt, (ed.) Reading Dworkin Critically (New York; Oxford 1992), 123.Google Scholar There is a clear (but unsatisfactory) link between the model of Dworkinian adjudication and the notion that “hcrmcncutics claims to acknowledge both the creative character of interpretation and its constrained nature” (op. cil., p. 129).Google Scholar

⁵⁵ This selects from the right answer claim one of its necessary components, which is that the decision-maker considers the answer to be the right one. I am arguing that even this is to some degree inconsistent with the constraints which Dworkin claims to have identified in legal reasoning.

⁵⁶ “Fairness” might be defined as a situation in which a good procedure removes the necessity for arriving at a good result. “Integrity” goes largely undefined (though see Law's Empire, pp. 164–167) but in comparison with fairness it appears to be one step further from justice. It relies on an effort to do the right thing, and to do it consistently.Google Scholar

⁵⁷ Fish, , “Still Wrong After All These Years”, in Doing What Comes Naturally (Oxford, 1989) 356, at p. 361: “Dworkin's strictures against conventionalism and pragmatism arc ‘academic’ (in the familiar pejorative sense) because they are not positions one could put into practice”.CrossRefGoogle Scholar

⁵⁸ See e.g. Law's Empire, p. 262: a judge “might reject law as integrity in favour of conventionalism or pragmatism …”Google Scholar

⁵⁹ Fish, , “Still Wrong After All These Years”, above, p. 364.Google Scholar

⁶⁰ In this sense, and despite Fish's insistence that judges must work within a practice, the judicial role seems to fit within Fish's definition of what it is to work with a practice. To think with a practice is, says Fish, “to be forever calculating just what one's obligations arc, what procedures are ‘really’ legitimate, what evidence is in fact evidence, and so on. It is to be a theoretician.” (“Dennis Martinez and the Uses of Theory”, in Doing What Comes Naturally, above, 372, at p. 387). On this basis, judges would appear to me to be at least part-time theoreticians.Google Scholar

⁶¹ Law's Empire, pp. 78–83.Google Scholar

⁶² Taking Rights Seriously (London 1977), p. 81: “It remains the judge's duty, even in hard cases, to discover what the rights of the parties are, not to invent new rights retrospectively.”Google Scholar

⁶³ Taking Rights Seriously, p. 85: “If the plaintiff has a right against the defendant, then the defendant has a corresponding duty, and it is that duty, not some new duty created in court, that justifies the award against him.” This sort of reasoning becomes less appealing when cases become hard cases and outcomes become unpredictable.Google Scholar

⁶⁴ Alan Hunt argues that Dworkin's project is motivated by three linked fears which together make up the “fear of politics”. These are “the fear of subjectivism or personal preference, the fear of relativism or nihilism (external skepticism), and the fear of pragmatism/utilitarianism”. (“Law's Empire or Legal Imperialism?”, in Reading Dworkin Critically, note 54 above, at p. 39).Google Scholar

⁶⁵ “Martinez and the Uses of Theory”, note 60 above, p. 386. In his general argument that “law as integrity” is descriptively accurate but prescriptively banal, Fish appears to contradict this point about the additional limits which Dworkin prescribes for practice.Google Scholar

⁶⁶ Law's Empire, pp. 238–275.Google Scholar

⁶⁷ This likely result, if nothing else, is consistent with the actual decision in the case.

⁶⁹ Law's Empire, pp. 241, 247.

⁷⁰ The short-list is set out in Law's Empire, p. 240.

⁷¹ These were self-imposed in the sense that Hercules seems to have been able to imagine more than he was willing to countenance.

⁷² Law's Empire, p. 242. Interpretation no. (2) reads as follows: “People have a moral right to compensation for emotional injury suffered at the scene of an accident against anyone whose carelessness caused the accident but have no right to compensation for emotional injury suffered later.”

⁷² i.e. the rebuttablc presumptions as to relationship and foreseeability.

⁷³ For example, interpretation (1) (“No one has a moral right to compensation except for physical injury”) was rejected because it did not fit.

⁷⁴ Law's Empire, pp. 266–275.Google Scholar

⁷⁵ Ibid., pp. 267–268, preferring interpretation (5) (straightforward foreseeability) to interpretation (6) on this basis.

⁷⁶ It was argued in this section that only if the decision-maker believes in the Tightness of the answer can the right answer claim be defended as an interpretive concept.

⁷⁷ Fish argues otherwise: See “Martinez and the Uses of Theory”, note 60 above, p. 389: judges “arc engaged in the practice of self-presentation”, which need not be the same as “offering an account of how they actually did it”.Google Scholar

⁷⁸ Douzinas, McVeigh and Warrington (note 54 above, p. 140) have argued that Dworkin misrepresents the roles of reason and imagination in interpretation. “Imagination is the key, not to right answers, but to multiple possibilities, … the ‘rightness’ of which is to be argued for and not solved.”

⁷⁹ See Hunt (Reading Dworkin Critically, note 54 above, p. 41) for the argument that law is one specific form of politics and that “the boundaries between the different forms of politics arc well worth defending.”Google Scholar

⁸⁰ Hunt, , op. cit., p. 13.Google Scholar

⁸¹ (1868) L.R. 3 H.L. 330.

⁸² It should be added that a change in attitude, and perhaps in the status of common law strict liability for pollution, may be signalled by the Court of Appeal's decision in Cambridge Water Ltd. v. Eastern Counties Leather Plc. 19 November 1992 (The Independent 27 January 1993; The Times 29 January 1992; (1993) 5 Journal of Environmental Law 173, noted at (1993) C.L.J. 17). Not only has the Court of Appeal given effect to a common law right to extract naturally occurring underground water in an uncontaminated condition (applying Bollard v. Tomlinson (1885) 29 Ch.D. 115), but it has also frankly questioned the relevance of the concept of non-natural user in Rylands v. Fletcher. Nevertheless, it should be noted that the Court of Appeal's comments on Rylands were obiter dicta, and that the Court did not arrive at its decision on the basis of any discussion of policy issues. Rather, it was thought that the law was clear, and that “the court's decision cannot be affected by policy considerations”. It was noted inconclusively that there might be reasons to say that the decision “accords with contemporary opinion”, but that this was for “others” to consider.Google Scholar