Pragmatism and Theory in English Law - College of Social Sciences ...

160 Theory Beneath the Surface
The answer of course is that the judges originally started
out with the declaratory theory of law, and according to
that theory any judicial change of direction must be deemed
to be merely a discovery of what was, after all, law along
even though the judges did not realise it. 23 But now that the
declaratory theory has been abandoned even by the judges
themselves, what is there to stop them abandoning the conclusion
which they drew from it and announcing that new
decisions, in appropriate cases, are only to have prospective
effect? 24 The American courts have long since taken this
step in a wide variety of circumstances 25 and it is time we
looked at it more closely in England.
Then again we have Lord Reid's remarks in Beswick v.
Beswick 26 to the effect that if Parliament procrastinated
much longer on the issue of third party beneficiary rights in
contract, the judges might have to do the job themselves.
This also tells us something about when judges should
intervene and innovate, but not very much. After all, few
would argue that because Parliament is likely to procrastinate
until Doomsday before' introducing proportional representation,
therefore the judges should do the job for them.
Clearly, third party beneficiary rights is a more suitable
subject for judicial activity than electoral reform, and in this
instance it is not difficult to see why. But there are other
instances where it is not nearly so obvious why reform
23 See Lord Simon in Jones v. Secretary of State for Social Services [1972] A.C.
944, at p. 1026.
24 Thus Lord Simon has several times called for a re-examination of this
question, as in the Jones case, supra. See also Nicol, "Prospective Overruling:
A New Device for English Courts?", (1976) 39 M.L.R. 542.
25 See, e.g. Munzer, "Theory of Retroactive Legislation," 61 Tex. L. Rev.
425 (1982); Traynor, "Quo Vadis, Prospective Overruling: A Question
of Judicial Responsibility." 28 Hastings LJ. 533 (1977).
26 f 1968] A.C. 58, at p. 72; these words are echoed by Lord Scarman in
Woodarv. Wimpey [1980] 1 All E.R. 571, at p. 591.