Dalhousie Law Journal


Common Law, Twentieth Century, judicial, legislative, approach to law-making, academic debate


Comparing the judicial with the legislative approach to law-making is the stuff of academic debate. I do not propose to enter upon that debate in this short discussion, except to concede that each approach has its strengths, each its weaknesses, and each its separate role. My purpose is, rather, to examine the making of law by the judiciary as it illustrates the inherent capacity of the common law for change and for growth in a dynamic society. This century has seen several extraordinary developments of the common law in Canada, England, and the United States, the leading example of which is in the area of liability for negligence. By adopting the concept of a duty of care to one's neighbour in MacPherson v. Buick Motor Co., 1 Mr. Justice Cardozo, of the New York Court of Appeals, took a giant step away from the traditional view of negligence causing loss to a third party who is not within the contract relationship.

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