Lord Denning:
Christian Advocate and Judge

The Rt. Hon. Lord Edmund-Davies*'

January 23, 1899, is a date assured of a permanent place in English legal history.
For it was the day on which, above his father's draper's shop in the then small
Hampshire town of Whitchurch, there was born one destined to playa paramount
part in the development of English common law. By today no lawyer - and few
laymen - can fail to know at least the salient facts in the life-history of Alfred
Thompson ('Tom') Denning, Baron Denning of Whitchurch in the County of
Hampshire, to give him the full title. It is a thrilling tale of the ascent from
comparatively humble origins of one destined to occupy an imperishable place in
the ever-unrolling tapestry of the law, a man whose gifts of character and intellect
are such that people like myself are proud to be able to say, "I have sat and worked
alongside Tom Denning on the Bench and I count that as a privilege beyond all
price."

The milestones in his life are memorable. Educated locally and then as a
scholarship boy at Andover Grammar School, he went on to secure first-class
honours at Oxford, originally in mathematics and then, a mere year later, in
jurisprudence. After active service in France in the 1914-18 Great War, he was
called to the Bar in 1923 and became a King's Counsel in 1938. He was appointed
a High Court judge in 1944 at the early age of 45, was elevated to the Court of
Appeal in 1948, and went to the House of Lords in 1957. But in 1962 he returned
to the Court of Appeal as Master of the Rolls, and he has occupied that august
office ever since.

It is a stirring story of the recognition and rewarding of sheer merit. But my
purpose is to reveal something of the man behind the bald record, and thereby to
demonstrate that the mainspring of his life has been his firm belief in the Christian
religion and his courageous application of Christian principles to the task in hand.

Like most good stories, it all began in his childhood in Hampshire, with the
family's established practice of regular churchgoing, and leading on in later life to
service as a Churchwarden and member of the Parishional Church Council. The
familiarity with Biblical texts which he acquired at an early age did much to form
and, indeed, to transform his style of speaking, so that in later life his judgments

"'Lord of Appeal. The substance of this article was first published in [1981] Christiarl Legal Society
Quarterly.

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THE DENNING LAW JOURNAL

and addresses have (like most parts of the New Testament) consisted of sentences
of remarkable clarity and brevity, frequently declining to recognise any need for an
accompanying verb.

Early habits die hard, and Denning's Christian creed remains the dynamic of his
life. For many years he has been President of the Lawyers' Christian Fellowship of
the United Kingdom, and in his address delivered at the Annual Service in the
Temple Church in October, 1977, he recalled words he had first publicly used a
quarter-century earlier. They reveal an attitude which, as I believe, constitutes the
bedrock of his Christian philosophy and practice. Speaking of the Ten
Commandments he said:

"This intermingling of religious, moral and legal precepts was typical of early
society. But now these precepts have become severed. This severance has
gone much too far. They say law governs one's dealing with one's fellows,
religion concerns one's dealings with God, but the two are quite separate.
Likewise they say the law has nothing to do with morality. It lays down rigid
rules which must be obeyed without questioning whether they are right or
wrong. Its function is to keep order, not to do justice.

The severance has, I think, gone too far. Although religion, law and morals
can be separated, they are nevertheless still very much dependent on each
other. Without religion there can be no morality: and without morality there
can be no law."

For Lord Denning, law is (or should be) synonymous with justice, and it is with the
doing of justice (as he sees it) that for nearly 40 years on the Bench he has
dedicated himself. To quote myoid friend, Francis Cowper, "His eyes are on the
future, but his feet stand firmly in the ancient certainties of morality and true
religion. They set the standard of the principles of justice to which it is his
self-imposed task to mould the law ... Times change; new diseases attack
individuals and the body politic, and Denning is not the doctor to treat the afflicted
patients with old prescriptions out of old bottles." He has never restricted himself
simply to ascertaining what is the law relevant to the particular facts and then
blandly applying it. For ifhe regards the existing law as unjust he will do his utmost
to discard it and substitute something better. And so he wrote in the preface to his
1979 work, Discipline in the Law:

"I use the word [discipline] in the sense given in the Shorter Oxford Diaionary
of 'Instruction imparted to disciples or scholars'. But I have no disciples, and
scholars are few. Yet I use the word so as to show that I wish to impart
instruction - instruction, that is, in the principles of the law as they have been,
as they are, and as they should be ... Like the centurion in the Gospel, 'I also
am a man set under authority' (Luke 7:8). Restless under authority, irked by it
- when I feel it to be wrong - nevertheless it is my duty to abide by it - unless
I can persuade my brethren that it is working injustice. Then when authority
is shown to be wrong, the time will come when it will be overthrown: or at any

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LORD DENNING: CHRISTIAN ADVOCATE AND JUDGE

rate it should be. If not by the judges, then by Parliament - at the instance of
the Law Commission. Where I have failed they may succeed."

Holding this view of the judicial role, it is a natural corollary that Lord Denning
has always imposed the highest standards of conduct upon members of the legal
profession, both inside court and out. Here are the opening words of one of his
early addresses ("The Honest Lawyer"):

"If there is one thing more important than any other in a lawyer it is that he
should be honest. He must be honest with his clients. He must be honest with
his opponent. He must be honest with the court. Above all, he must be honest
with himself. This was, you may remember, the precept given by Polonius to
Laertes: 'This above all: to thine own self be true. And it must follow as the
night the day, thou canst not then be false to any man'."

Denning's refusal to apply laws which he regards as out-moded and unjust has
been unremitting and relentless. At times it has led to unfortunate clashes with
some of his judicial brethren who, though no less dedicated to doing justice than
he, have felt compelled to apply the established law, even though they have
strongly disliked it and openly criticised it and pleaded for Parliament to amend it
speedily. Perhaps the clearest example of this clash arises from their differing
attitudes to the task of interpreting Acts of Parliament. Not for Denning a mere
literal interpretation, for (as he reminds us) "the letter killeth, but the spirit giveth
life" (II Corinthians, 3,6). For him the judge's task is to find out the intention of
Parliament. He accepts that, in doing this, you must naturally start with the words
used in the statute. But, he insists, "You don '[ end with them - as some people
seem to think. You must discover the meaning of the words ... Judges are too
often inclined to fold their hands and blame the legislature, when they really ought
to set to work to give the words a reasonable meaning, even if this does involve a
departure from the letter of them. By so acting they are more likely to find the
truth."

But finding what is the truth in the context of statutory interpretation can
confront the most zealous judge with grievous problems. Sometimes his sworn
duty to "do right by all manner of people after the laws and usages of this realm"
puts the judge in grave difficulty, for certain of those laws and usages may be
repugnant to him. He can meet that unfortunate situation in one of two ways. First,
when the law appears clear, he can shrug his shoulders, bow to what he regards as
the inevitable, and apply it. If he has intellectual and moral twinges in doing so, he
can always invoke Lord Chancellor Simonds, who said in 1962:

"To me, heterodoxy, or as some might say, heresy is not the more attractive
because it is dignified by the name of reform. Nor will I easily be led by an
undiscerning zeal for some. abstract kind of justice to ignore our first duty,
which is to administer justice according to law, the law which is established
for us by Act of Parliament or the binding authority of precedent."

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Alternatively, a judge can be bold and deliberately set out to make new law ifhe
thinks the existing legal situation is unsatisfactory. But he risks trouble if he goes
about it too bluntly. And sometimes the law, being declared in statutory form, is
too much for him, dislike it though he may. In the first year of the 18th century,
Chief justice Holt said, "An Act of Parliament can do no wrong, though it may do
several things that look pretty odd", and judges have long been chafed by this
undoubted supremacy of Parliament, whose most questionable enactments must
be applied. Faced by so unfortunate a situation, they must do the best they can.
They may, for example, find it possible to hold that some other and fairer
construction of a statute is conceivable. If so, they seize upon that more attractive
construction with as near an approach to gaiety as is seemly in a judge.

If, perchance, there is a lacuna in a statute, they may decide to follow the trail
blazed by Lord Denning, who declared over 30 years ago:

"When a defect appears, a judge cannot simply fold his hands and blame the
draftsman. He must set to work on the constructive task of finding the
intention of Parliament ... A judge should ask himself the question: If the
makers of the Act had themselves come across this ruck in the texture of it,
how would they have straightened it out? He must do as they would have
done. A judge must not alter the materials of which it is woven, but he can
and should iron out the creases."

Nevertheless, a judge who follows that advice runs the risk of being gravely
censured, as Lord Denning himself was, Lord Simonds saying:

"The duty of the court is to interpret the words that the legislature has used:
those words may be ambiguous, but, even if they are, the power and duty of
the court to travel outside them on a voyage of discovery are strictly limited
... If a gap is disclosed, the remedy lies in an amending Act."

But Lord Denning remained unrepentant, and 20 years later he retorted by
saying in the Court of Appeal, "We do not now in this court stick to the letter of a
statute. We go by its true intent. We fill in the gaps."

Whatever view the reader may take about such gap-filling (and there is room for
widely differing opinions even among righteous men), Lord Denning has scant
respect even for long-established law if he thinks its application would lead to an
unjust result in the particular case. For to him justice is far preferable to mere
conformity, even though the "just" decision may introduce great uncertainty into
the law. Holding in 1954 that the relevant statute enabled the court to order a
husband to pay maintenance for his child born before marriage, and refusing to
follow an earlier decision to the opposite effect, he said:

"What is the argument on the other side? Only this, that no case has been
found in which it has been done before. That argument does not appeal to me
in the least. If we never do anything which has not been done before, we shall

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LORD DENNING: CHRISTIAN ADVOCATE AND JUDGE

never get anywhere. The law will stand still whilst the rest of the world goes
on: and that will be bad for both."

Not surprisingly, Denning has frequendy been rebuked in the House of Lords.
But his mettle is such that, though he must naturally dislike such experiences, in
no way have they dismayed him. And, to gain his point, he has never hesitated to
seek a wider audience for his views. Opposing what he regarded as merely slavish
adherence to precedent, he went off to Oxford in 1959 and delivered in his
Romanes Lecture weighty blows upon the doctrine that even the House of Lords
was bound by precedent. He said:

"If lawyers hold to their precedents too closely, forgetful of the fundamental
principles of truth and justice which they should serve, they may find the
whole edifice comes tumbling about them."

And, echoing Mr Justice Jackson, he continued:

"The common law will cease to grow. Like a coral reef, it will become a
structure offossils ... The House of Lords is more than another court oflaw.
It is more than another Court of Appeal. It is the Court of Parliament itself. It
acts for the Queen as the fountain of justice in our land. It lays down ... the
fundamental principles of the law to govern the people; and, whilst adhering
firmly to these principles, it should overrule particular precedents that it finds
to be at variance therewith."

His words went unheeded at the time. But not for long, for they paved the way
leading to the important statement of 1966, in which the House of Lords
announced their intention" ... to modify their present practice and, while treating
former decisions of this House as formally binding, to depart from a previous
decision when it proves right to do so." It was a mighty victory. But not as great as
Lord Denning would have liked, since it has been held that in all United Kingdom
courts below the House of Lords the binding force of precedents still prevails in
full vigour. Even so, it has had an important effect in freeing the House of Lords
from the shackles of the past and has enabled them to do justice in several cases,
regardless of previous holdings which would otherwise have prevented them from
adopting what they regarded as a proper and preferable course.

Were I asked to identify the hall-mark of Lord Denning's application of
Christian principles in his judicial work, I should point to his passionate and
persistent respect for the individual. And the more the individual lacks the
trapping of material power and worldly status, the more doughty is the support
which Denning extends to him. His manifestly genuine liking of most of the people
he meets daily in his busy life is reflected in his instinctive attitude in human
relationships. And to see and hear him in his court of a Monday morning, dealing
with lay litigants, is wondrous to behold. If they appear bewildered (as they often
do), he proceeds with ineffable courtesy and tact to put them at their ease; with

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unrivalled patience he extracts the gist of their grievances; and with consummate
,skill he disposes of their case in such a manner that even the unsuccessful litigant
has no proper cause for complaint that he has not been fully and fairly heard. But
Denning is perhaps at his best in the company of young people, for, without being
in the slightest degree "trendy", he has a quality of youthfulness which puts them
at their ease and wins their unfailing allegiance. And, despite his high position and
massive learning, I doubt that a less pompous man ever lived.

Time and again Denning has recalled the second commandment's insistence
that we love our neighbour as ourselves. And he has consistently given
"neighbour" the widest connotation. He revelled in the famous words of Lord
Atkin 50 years ago in the "Snail in the Bottle Case" I:

"The rule that you are to love your neighbour becomes in law that you must
not injure your neighbour: and the lawyer's question 'Who is my neighbour?'
receives a restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neigpbour. Who then in law is my neighbour? The answer seems to be -
persons who aie so closely and directly affected by my acts that I ought
reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question."

Lord Denning rightly regarded it as significant that Lord Atkin drew his
principles of justice from the Christian commandment of love, and commented:

"I do not know where else he is to find them. Some people speak of natural
justice as though it was a thing well recognisable by anyone, whatever his
training and upbringing. But the common law of England has been moulded
for centuries by judges who have been brought up in the Christian faith. The
precepts of religion have been their guide in the administration of justice."

Denning began his long career on the Bench as a divorce judge, and he hated it.
Fortunately, his servitude lasted only 18 months before he became a King's Bench
judge. But even so short a period was sufficient to bring home to him many
deficiencies in our matrimonial law. And this undoubtedly propelled him later to
achieve massive improvements in relation to such complex problems as the
deserted wife's equity and her share in the matrimonial home.

In matrimonial cases the "neighbour" relationship is obvious. But Lord
Denning has been quick to point out that it is a relationship which has spacious
dimensions. It is of fundamental importance in a wide variety of cases. Time and
again he has reverted to it when dealing with industrial injuries claims brought by
workmen against their employers. And it is the basis of many of his decisions
arising from the alleged misuse of Ministerial powers, and in cases concerning
departure from natural justice, cases about unfair discrimination on grounds of

I. Donoghue v. SIt:t'N/SOn [19321 A.C.562, 580.

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LORD DENNING: CHRISTIAN ADVOCATE AND JUDGE

race, religion or sex, cases involving the interpretation of exemption clauses in
contracts, and in his many decisions which completely transformed the pension
rights of ex-servicemen.

The catalogue is indeed as long as it is impressive. Even so, it amounts to no
more than a bald and inadequate guide to the lifework of a man dedicated from
childhood to do justice between all people, "without fear or favour, affection or ill
will." And that lifework has without doubt been directed and inspired by the
Christian faith in which he was nurtured and of which he has been an
ever-steadfast and passionate advocate.

As his score of years (1962-1982) as Master of the Rolls drew to a close, Lord
Denning acquired - and continued - the habit of writing a book a year. Here they
are, with their titles and dates of publication: The Discipline of the Law (1979); The
Due Process of Law (1980); The Family Story (1981); What's Next in the Law? (1982)
The Closing Chapter (1983); and Landmarks in the Law (1984).

The title of each suggests that it contains his last words, but his apparently
complete recovery from somewhat ailing health has enabled him, now in his 87th
year, to continue his vigour, his crusade for law reform. In the recent words of
Francis Cowper, Editor the Graya, the house magazine of Gray's Inn, of which
Lord Denning is, naturally, an Honorary Bencher:

"Off the Bench he can no longer indulge in his favourite sport of tug-of-war
with the House of Lords. Instead, he has joined the Lords in their legislative
capacity, and is able to make his voice heard in the discussion of Acts of
Parliament, expressing the convictions and propounding the principles which
he has always upheld in his judicial capacity. He has only changed his field of
action."

Let me end this inadequate tribute to a great man with whom I have been vastly
privileged to work by quoting the concluding words of one of his early published
works:

"What does it all come to? Surely this, that if we seek truth and justice, we
cannot find it by argument and debate, nor by reading and thinking, but only
by the maintenance of true religion and virtue. Religion concerns the spirit in
man whereby he is able to recognise what is truth and what is justice; whereas
law is only the application, however imperfectly, of truth and justice in our
everyday affairs. If religion perishes in the land, truth and justice will also. We
have already strayed too far from the faith of our fathers. Let us return to it,
for it is the only thing that can save us." 2

2. The Challgirlg Law, 1953.

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