The domestic law of England and Wales has set its face firmly against “dog-law”.

So it should, even in the case of the tabloid press! He continued:

… There are two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.

He made these comments in the context of a potentially unclear common law criminal offence, but the principle ought to be the same for common law tort liability, yes, even for the tabloid press.

It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do—they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it.

Now, there may not in fact be much difference between dogs and red-tops, but, for the reasons which Ruth gives, this was not a good way for the law to operate when Bentham pointed it out, and it still isn’t.