1 « Or, c’est à la jurisprudence que nous abandonnons les cas rares et extraordinaires qui ne sauraient entrer dans le plan d’une législation raisonnable, les détails trop variables et trop contentieux qui ne doivent point occuper le législateur, et tous les objets que l’on s’efforcerait inutilement de prévoir, ou qu’une prévoyance précipitée ne pourrait définir sans danger. C’est à l’expérience de combler successivement les vides que nous laissons. Les codes des peuples se font avec le temps ; mais, à proprement parler, on ne les fait pas. » in Jean-Étienne-Marie Portalis, « Discours Préliminaire », 1801.

2 «For else, by the craft of an interpreter, the law may be made to bear a sense contrary to that of the sovereign, by which means the interpreter becomes the legislator.», in Thomas Hobbes, Léviathan, Chap. 26: «Of civil law».

3 «All laws, written and unwritten, have need of interpretation. […] it is not the letter, but the intendment, or meaning; that is to say, the authentic interpretation of the law (which is the sense of the legislator)», in Th. Hobbes, Ibid.

4 Consumer Protection Act s1(2): «In this Part, except insofar as the context otherwise requires a) ‘agricultural produce’ means any produce of the soil, of stock farming or of fisheries ; ‘producer’ in relation to a product means b) the person who manufactured it…; ‘product’ means any goods or electricity and includes a product which is comprised in another product.»

5 Gambling Act 2005, s1(2) «In this Act ‘game of chance’: (a) includes (i) a game that involves both an element of chance and an element of skill, (ii) a game that involves an element of chance that can be eliminated by superlative skill, and (iii) a game that is presented as involving an element of chance, but (b) does not include a sport.»

6 Race Relations Act 1976, s3(1): «a group of persons defined by reference to colour, race, nationality or ethnic or national origins.»

7 Les références complètes des affaires juridiques citées sont fournies en fin d’ouvrage.

8 «That is the meaning which I – acquiring my vocabulary in 1934 – have always myself attached to the word “ethnic”. It is, to my mind, the correct meaning». (Mandla v Dowell Lee 1982, CA, per Denning LJ.)

9 «The jurisdiction of this court is not to be taken away unless there be express words to take it away, this is a point settled.» (R v Moreley 1760, per Mansfield CJ)

10 Sunday Entertainments Act 1932 s1(1): «[…] subject to such conditions as the authority think fit to impose.»

11 «[The] power of the court to interfere […] is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.» (Assoc Provincial Picture Houses v Wednesbury Corp CA 1947, per Greene MR)

12 Ludwig Wittgenstein, Philosophische Untersuchungen, edited by G. E. M. Anscombe, Oxford, Blackwell, 2001 ; trad. fr. sous la dir. de F. Dastur, Recherches philosophiques, Paris, Gallimard, 2005.

13 Il s’agit d’une règle d’implicature pragmatique qui correspond parfaitement à l’analyse conversationnelle de H. Paul Grice ; voir « Logic and Conversation », in Studies in the Ways of Words, Cambridge, Harvard University Press, 1975. Cela laisserait entendre que tout ce qui n’est pas déclaré illégal doit être considéré comme licite.

14 «[A]ll the household furniture, plate, linen, china, glass, and tenant’s fixtures, wines, spirits and other consumable stores, and other goods, chattels, and effects.»

15 Vagrancy Act 1824, s4: «Every person being armed with any gun, pistol, hanger, cutlass, bludgeon, or other offensive weapon, or having upon him or her any instrument, with intent to commit an arrestable offence […]»

16 Voir Firearms Act 1968 s5(1)(b): «any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing.»

17 «“Intention of the legislature” is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately be ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.» (Salomon v Salomon & Co 1897, per Lord Watson.)

18 «We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.» (Magor & St Mellons v Newport Corp CA 1952, per Denning LJ.)

19 «A naked usurpation of the legislative function under the thin guise of interpretation» (Magor and St Mellons v Newport Corp HL, per Lord Simonds).

20 «The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law.» (Brutus v Cozens HL 1972, per Lord Reid)

21 «A decision of this House once given upon a point of law is conclusive upon this House afterwards […] it is impossible to raise that question again as if it was res integra and could be reargued, and so the House be asked to reverse its own decision.» […] That is a principle which has been, I believe, without any real decision to the contrary, established now for some centuries, and I am therefore of opinion that in this case it is not competent for us to rehear and for counsel to reargue a question which has been recently decided.» (London Street Tramways v LCC HL 1898, per Lord Halsbury LC)

22 «It is true that George v Skivington has been the subject of some criticism and was said by Hamilton J […] to have been in later cases as nearly disaffirmed as is possible without being expressly overruled. I am not sure that it has been so severely handled as that. At any rate I do not think that it deserved to be and certainly, so far as I am aware, it has never been disapproved in this House.» (Donoghue v Stevenson 1932, per Lord Macmillan).

23 «I can formulate no convincing juristic or logical principles supportive of the decision in this House in Baker v Willoughby 1970 and none were there propounded. […] it may therefore be that Baker v Willoughby is acceptable on its own facts.» (Jobling v Associated Dairies 1981, per Lord Edmund-Davis)

24 «I dislike usurping the functions of Parliament. But it appears to me that we are confronted with the choice of following Addie and putting the clock back or drastically modifying the Addie rules.» (BR v Herrington 1972, per Lord Reid)

25 «The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract» (Hale, 1736, I: 639).

26 «Overruling Roe’s central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.» (Planned Parenthood of Southeastern PA v Casey 1992)

27 Voir R. Charnock, « Overruling as a speech act : performativity and normative discourse », Journal of Pragmatics, 41, 2009, p. 401-26.

28 «It would be intellectually dishonest in this case to attempt to distinguish Junior Books and I do not do so. I simply decline to apply it on the basis that it is unique and that it depends on the Hedley Byrne doctrine of reliance.» (Nitrigin Eareann v Inco Alloys 1992, per May J)

29 «I have always supposed that the Lochner Case was thus overruled sub silentio. Yet the opinion of the court herein in support of its conclusion quotes from the opinion in the Lochner Case as one which has been sometimes distinguished but never overruled.» (Adkins v Children’s Hospital 1923, per Taft CJ, dissenting)

30 «It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account. I should not hesitate to take them into account if I thought it necessary to sustain this Act. […] I had supposed that it was not necessary, and that Lochner v New York would be allowed a deserved repose.» (Adkins v Children’s Hospital (1923) per Justice Holmes, dissenting)

31 «We think that the views thus expressed are sound, and that the decision in the Adkins case was a departure from the true application of the principles governing the regulation by the State of the relation of employer and employed. […] Our conclusion is that the case of Adkins v Children’s Hospital, supra, should be, and it is, overruled.» (West Coast Hotel v Parrish 1937, per Hughes CJ)

32 De ce point de vue, les juges se comportent comme le « bizarre sceptic » décrit par Kripke, qui applique les règles de manière imprévisible, tout en affirmant les interpréter toujours de la même façon.

33 «Judicial power is “not delegated to pronounce a new law, but to maintain and expound the old one. […]” Thus the judges do not «pretend to make a new law, but to vindicate the old one from misrepresentation […] For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law.» (Blackstone 1765, vol 1: 69-70)

34 «We cannot say that the law was one thing yesterday but is to be something different tomorrow. If we decide that [the existing rule] is wrong we must decide that it always has been wrong.» (West Midland Baptist (Trust) v Birmingham Corp HL 1970, per Lord Reid)

35 «This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.» (R v R 1992, per Lane CJ)

36 «The theoretical position has been that judges do not make or change law: they discover and declare the law, which is throughout the same. According to this theory, when an earlier decision is overruled the law is not changed: its true nature is disclosed, having existed in that form all along. This theoretical position is, as Lord Reid said, a fairy tale in which no-one any longer believes.» (Kleinwort Benson v Lincoln City Council, HL 1998, per Lord Browne-Wilkinson)

37 « Until the approach to the doctrine of precedent is changed, the practical consequence is that once the later decision has been given there is no right to rely on the earlier decision as correctly representing the law. […] This is an undoubtedly highly artificial result. It involves a fairytale. However […] it is not open to this court to abandon the fairytale. » (R v Governor HM Prison Brockhill Ex. p Evans CA 2000, per Lord Woolf MR)

38 «The decisions of the Court of Appeal and then the House of Lords in R v R did no more than continue a perceptible line of case law development, dismantling the immunity of a husband. This evolution had reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law.» (SW v United Kingdom, SW v United Kingdom ECHR (1996) 1 FLR 43).

39 «We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights. It is much more conducive to law’s self-respect to recognize candidly the considerations that give prospective content to a new pronouncement of law.» (Griffin v Illinois 1956, per Justice Frankfurter).

40 «Prospective decision making is the handmaid of judicial activism, and the born enemy of stare decisis. It was formulated in the heyday of legal realism and promoted as a « technique of judicial lawmaking » in general, and more specifically as a means of making it easier to overrule prior precedent.» (Harper v VA Taxation 1993, per Justice Scalia).

41 Voir John L. Austin, How to Do Things with Words, edited by J.O. Urmson and M. Sbisà, Oxford, Oxford University Press, 2^de edition, 1975 ; trad. fr. G. Lane, Quand dire c’est faire, Paris, Éditions du Seuil, 1970 ; réédité avec une postface de F. Récanati dans la coll. « Points-essais », 1991.

42 «These are the opinions of all the twelve judges of England; a great and reverend authority. Can the twelve judges extrajudicially make a thing law to bind the kingdom by a declaration, that such is their opinion? I say no. It is a matter of impeachment for any judge to affirm it.» (Entick v Carrington 1765, per Jefferies, Recorder).

43 Voir Timothy Endicott, « Interpretation and indeterminacy », Jerusalem Review of Legal Studies, 10/1, 2014, p. 46-56.

44 «It is said that there is no precedent. The law does not consist of particular cases but of general principles, which are illustrated and explained by these cases.» (R v Bembridge, 1783 per Mansfield CJ).

45 Herbert L. A. Hart, The Concept of Law, Oxford, Oxford University Press, 1961, p. 124.

46 H. L. Hart, op. cit., p. 126.

47 Theft Act 1968 s1(1): «A person is guilty of theft if he dishonestly appropriates […] property belonging to another with the intention of permanently depriving the other of it.»

48 «However I might differ in my own notion of the ordinary acceptation of the word ‘money’ in this case, I cannot hold its meaning to be contrary to what judicial decision has determined its ordinary sense to be.» (Lowe v Thomas 1854, per Page Wood VC)

49 Voir Hilary Putnam « The meaning of “meaning” », in Mind, language and reality, Philosophical Papers Vol. 2, Cambridge, Cambridge University Press, 1975.

50 François Récanati, Literal meaning, Cambridge : Cambridge University Press, 2004, p. 143.

51 Lors de l’affaire du divorce entre Charman et Charman (2007), qui dépendait de l’application de la Section 25 du Matrimonial Proceedings and Property Act de 1984, le juge Sir Mark Potter, Président, ajoutait à son jugement un long postscriptum intitulé « Changing the law », dans lequel il qualifie Londres de capitale mondiale de la procédure du divorce.

52 Voir Saul A. Kripke, Wittgenstein on rules and private language, Oxford, Blackwell, 1982.