Where did the Donoghue v. Stevenson Decision Come From? A Jurisprudential Inquiry

Abstract

Is the concept of law primarily about taking rights seriously or a sociological process which produces a rule of recognition? Are Judges either Herberts or Hercules or they are simply consciously looking out to enforce values that have gone through the washing machine and consequently seeking stability, certainty, and following precedents? When judges depart from this role how far should they go creating new forms of rights even if that will disturb the natural order of society? The UK Supreme Court decision in Donoghue v. Stevenson was a landmark precisely because it extended the boundaries of torts and contract law; completely upending the principles of privity of contract and the traditional conception of the torts of negligence. In this essay, I will attempt to use Hartian ‘rules of recognition’ and Dworkinian ‘principles’ to explain how the Law Lords navigated the strict structures of legalism to arrive at a very fundamental ‘neighborliness principle’ that continues to be expanded so long as there is an established duty of care; a breach of that duty; and injury suffered.