Examine The Controversy That Surrounds The Question Of What Judges Are Doing When They Are Deciding Cases

3717 words - 15 pages

If we accept the hypothesis, that judges do indeed make law through their decisions, we need to look closely at the judges themselves to decide whether they are capable of performing that function. Judges are not, in this country, elected, as are the other law-makers (the legislators). If judges had no law-making role, then the uncertainty over judicial decision making would not arise; it would not matter whether the judiciary was representative of the society within which it operates, or whether it was capable of acting impartially. Lord Denning stated that: "Every judge on his appointment discards all politics and all prejudices. You need have no fear. The Judges of England have always in the past - and always will - be vigilant in guarding our freedoms. Someone must be trusted. Let it be the Judges." However, if judges were simply applying the law when making decisions, then it would not matter who was fulfilling that role, because, everybody would reach the same decision in every case, unless a judge happened to misapply the law, in which case another court could put him right. But judges reach very different decisions upon the same facts; there is no common agreement as to what the law is, and Hart argues that in many cases the judges are not only applying the existing law, but they are making new law. Another question which must be addressed is whether or not the largely similar background of judges results in judicial clones that not only think alike but tend to think along conservative or at any rate 'establishment' lines. Positivists, such as Herbert Hart, argue that judges require discretion to fill in criticism gaps. On the other hand critics of Hart, such as Ronald Dworkin, state that decisions in hard cases should be made through the use of legal principles not just rules. Judicial decision making is a very controversial issue in jurisprudence and there are many opposing arguments from positivist and natural law perspectives.The significance of Dworkin's attack on conventionalism, in general, and legal positivism, in particular lies in the failure of such theories to provide either a credible account of the process of law-making or a sufficiently strong defence of individual rights. In the case of McLoughlin v O'Brian the plaintiff was informed by a neighbour that her husband and four children had been injured in a motor-car accident. The neighbour drove her to the hospital where she saw her husband and sons seriously injured, and she was told that her daughter had died. She suffered nervous shock from this experience and sued the negligent driver who caused the accident. As the law stood, a plaintiff could recover damages for nervous shock only where he or she had actually witnessed the accident or arrived at the scene of the accident immediately after. However, the House of Lords reversed the decision of the court of appeal and unanimously held that, despite precedents to the contrary, the plaintiff (Mrs McLoughlin) could recover damages for nervous shock. On 'policy' grounds the Law Lords held that there was nothing in the law to prevent the plaintiff from succeeding. Controversially, Lord Scarman stated that: 'Policy considerations will have to be weighed; but the objective of the judges is the formulation of principle. And, if principle inexorably requires a decision which entails a degree of policy risk, the court's function is to adjudicate according to principle leaving policy curtailment to the judgement of parliament' Dworkin praised Lord Scarman, but he failed to emphasize that the other judges were horrified by these sentiments. As it happened, both Lord Scarman and his colleagues reached the same result in this particular case, but nobody bar Dworkin would want to claim that this isolated passage by lord Scarman had by this stage elevated his US doctrine in British judicial practice.Although it is difficult to determine the ratio of the case it is clear that, in formulating the law, the House of Lords arrived at a decision on the basis of what it regarded as the law. Therefore, according to Dworkin, a conventionalist would say that in this case there is no law and that the judge must therefore exercise a discretion and make new law which is then applied retrospectively to the parties in the case. However, Dworkin believes that '...propositions of law are true if they figure in or follow from the principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community's legal practice' Therefore, in McLoughlin v O'Brian deciding whether the plaintiff should recover involves deciding whether legal practice is seen in a 'better light' if we assume the community has accepted the principle that people in her position are entitled to receive compensation. In other words, in Dworkin's vision of 'law as integrity', a judge must think of himself not (as the conventionalist would have it) as giving voice to his own moral or political convictions, or even to those convictions which he believes the legislature or the majority of the electorate would approve. The judge would see himself 'as an author in the chain of common law'. As Dworkin put it 'He knows that other judges have decided cases that, although not exactly like his case, deal with related problems; he must think of their decisions as part of a long story he must interpret and then continue, according to his own judgement of how to make the developing story as good as it can be.' Therefore, according to Dworkin there is, 'no law beyond the law'; contrary to the positivist thesis, there are no 'gaps' in the law. He argues that law and morals are inextricably entangled and therefore there cannot be a rule of recognition by which to identify what is 'law'. Nor does law, as a union of primary and secondary rules, provide an accurate mode, because it fails to account for principles and policies.In July 1981, the Greater London Council implemented a resolution which was contained in the Labour party manifesto to the effect that, if re-elected, the Labour council would reduce transport fares by 25% and would meet that cost by increasing the general rate. On that ticket, the Labour council was indeed re-elected, and did as they had promised. Bromley London Borough Council, which was itself affected by this policy, brought an action in the High Court claiming that the GLC was acting outside the powers conferred by the act of Parliament. The relevant Act empowered the GLC to: "develop policies, and to encourage, organise, and where appropriate, to carry out measures, which would promote the provision of integrated, efficient and economic transport facilities and services for Greater London." The Divisional court rejected Bromley's application, but the Court of Appeal and the House of Lords each found in favour of Bromley LBC: in other words, they declared the fare-cutting scheme to be illegal. The decision in the Lords was made by a full bench of five Law Lords, and it was unanimous. It was the word 'economic' upon which the court unanimously based its decision: transport systems must run on an economic basis, and if these needed to be subsidised by an increase in the general rate, then they could not be economic. The decision proved controversial in the extreme, with many regarding this as an attempt to thwart Labour party policy. A senior GLC officer said that it was like 'an Alice-in-Wonderland construction of the 1969 Act ... I can't understand how it was possible for the Law Lords to read the Act the way they did'.Some sort of compromise was achieved when the GLC submitted a further scheme for approval, retaining the 25% subsidy but funding this through a grant from the GLC. At the end of the day, the effect was the same; the grant would have to be paid for by an increase in the general rate; nevertheless the new scheme was approved, perhaps at least in part, because of the major political row which broke out as a result of the first decision. The first decision, Griffith argues, was influenced by the judges' natural antipathy for a socialist fare-cutting scheme. Griffith contends, and there is evidence to support his view, that at least around this time, Labour Councils were discriminated against in the courts, whilst Conservative Councils tended to receive more favourable treatment. Mr Lyon, Labour MP, expressed a concern regarding the political character of the judges' intervention. Prime Minister Thatcher responded to the concern by saying: 'I wholly reject that. Judges give decisions on the law and on the evidence before them. They do so totally impartially'. Here we see that an obvious conflict arose between 'neutral' and 'partisan' perceptions of the law. It is apparent that the judges and their decisions are political in the following senses: that courts are political institutions and a political role is played by the judges; 'their decisions make a difference to the allocation of power, liberty, and resources in society' and this issue of politics has been described as 'who gets what, when and how'; and they are also 'involved directly in political interaction with others'. However, the controversy that arises around judicial politics is concerned with: whether judges are biased; whether they are attempting to impose their own moral values; or is their aim to protect their own political position or possibly that of their friends.In Bromley LBC v Greater London Council the Law Lords considered that the provision in a later section of the Transport London act (1969), which involved the need to avoid deficits, cast some light on the meaning of 'economic'. In making what he can from the text he is given, the judge will try to interpret it as a unity. Therefore, its numerous provisions are coherent and do not cut across each other. This interpretation may lead to the judge looking beyond the relevant statute to other legal provisions. The law is clearly not a set of independent edicts; it should bond together as a system. Ronald Dworkin has put great emphasis on this aspect of interpretation. Dworkin argues that judges should approach a case by developing a theory in relation to how a specific measure fits with the rest of the law as a whole. If there are two interpretations of 'economic', then the judge must choose the one that will allow the provision to sit most comfortably with the essence of the rest of the law and with the principles and ideals of the law. Dworkin believes that the judge should do this because a body of law which is rational and unified is more entitled to the respect and allegiance of its citizens. This will lead to a coherent system to fit particular laws into. This means that the law as a whole provides a frame of reference for political argument. Therefore Dworkin believes that judges should decide cases on grounds of principle, not on policy. Dworkin also argues that judges do not have the right to take new policy initiatives of their own; at most, it is their job to take part in and contribute to a conversation with the general community about the policies that they have already agreed to. The comments regarding the Greater London council's duty to its rate payers in Lord Scarman's speech can be read in this light. The 1969 act does not mention anything about ratepayers, but other statutes do and generally in English law it seems that local authorities have this responsibility.Dworkin, however, has expressed doubts whether judges should take part in policy-based legislation, even in extremely hard cases. There are legitimate reasons for caution because judges do not possess the skills nor the accountability to deal with considerations of policy effectively. In cases, such as, Bromley LBC v Greater London Council, the judges should refrain from looking at matters of policy because there are competent agencies available who can do that job more effectively, and they are more accountable to the people who will be affected by the potential decision.When courts follow their own initiative in a case like this, favouring their own interpretation of justice to the literal words in a statute, are these judges making law? The answer is definitely 'yes', mainly due to the functioning of the doctrine of precedent. Therefore, judges in lower courts will have to follow propositions set in such a case. Herbert Hart believes that judges must decide hard cases on policy grounds. To do this they should weigh its social consequences and decide on the best option for the future, just like the way a legislator would do it. Hart believes it is an advantage of the open-texture of legal language that it leaves room for the flexible adaptation of policy in this way. However, because of the open-textured nature of rules, this leaves scope for judicial discretion when applying the rule. Although, in the normal course of events, the rule will be applied without difficulty, but there will arise areas of indeterminacy where discretion will be required. Firstly, discretion will be required when the case in question does not fall within the core of certainty of meaning, but within a penumbra, for example, we all agree that a car is a vehicle, but is a skateboard a vehicle? Secondly, discretion will be required where the rule employs very general standards, such as, 'reasonable' or 'equitable'. There are clear cases where the standard applies and where it does not, but there will be many cases of uncertainty. Discretion will also be required where decisions are based upon precedents. Here the dilemma is that there is no single or unique formulation as to what constitutes the ratio of the case. In addition, it is open to judges to distinguish a precedent case. Nonetheless, Hart states: '...the life of the law consists to a very large extent in the guidance, both of officials and private individuals, by determinate rules ... which do not require from them a fresh judgement from case to case'.Hart's main critic, Dworkin, believes that in such 'hard' cases there exists a uniquely correct judicial decision. Although this cannot be provided by the existing rules, it is discoverable through the use of legal principles. Principles can be distinguished from rules as they seem to be more general in nature; they may conflict with each other, and they carry weight. In addition, he states that these principles cannot be identified by the rules of recognition, and yet they form part of law. Therefore, Dworkin's judge is embarking upon a much more ambitious venture - to find the single right answer to the legal problem. If she does her job properly she has no discretion at all.Legal rules are part of the legal system as Hart describes it, but the system is part of a tradition which embodies principles and policies (Dworkin). The judges are part of this system and have a duty to continue it and on the whole do so. The judge must therefore as part of her job, develop a constitutional theory of the system of which she is part. Dworkin goes on to say that in settled cases the constitutional theory requires that the court apply the rules as identified by the system. In hard cases, however, the judge has no strong sense of discretion (as Hart suggests), but must identify the appropriate principles embodied in the past decisions of the system or at least in the current state of the system. The judge then has to identify the weight of the relevant principles (including the principles of stare decisis) to find the right answer. While there is nearly always a right answer to be found only a superhuman judge will find it, whom Dworkin calls Hercules, Dworkin states: 'you will see now why I call our judge Hercules. He must 'fit' and 'justify' the scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory provisions as well'. If a statute is being applied then the judge must identify the policies embodied in the statute and weigh that with other policies and principles embodied in the historical system.On the other hand American realists argue that judges do not essentially simply apply rules. The decisions judges come to depends upon the psychology of the judge and decisions are essentially based on policy rather than consistency. Consequently, they believe law is a matter of predicting what judges do, not formally finding and applying rules to problems. In addition, they also argue that Law, including statute law, is what the judges say it is. This can sometimes be summarized as "rule-scepticism". What is initially striking about these propositions is that in a sense they are obviously true, but that they do not deny that rules play some part in adjudication - and leave as the central unaddressed problems: what part do rules play and what are rules anyway? These positions of Realism are what Hart distinguished his position from, while seeking to preserve the incompleteness of rules, and they are also explicitly positions Dworkin needs to oppose while rejecting an account of law in terms of rules alone. It is clear that neither is entirely successful in disposing of Realism.Dworkin does not fall comfortably into either camp. Nowhere does he suggest that if a legal system fails to comply with his scheme, then its legislation lacks validity. He speaks of morality, it is true, but when he does so it is to indicate what he thinks is right. Nowhere does he link morality with validity after the manner of a natural lawyer. Validity is not a concern of his. Therefore he is clearly not an orthodox natural lawyer and he is definitely not a positivist, so he meets in the middle.Whilst recognising that judges have a role in developing the law or creating new law, it is perhaps fair to emphasise that such a role is limited, even in the House of Lords, by the doctrine of binding precedent. Within the doctrine, judges are able to develop the law incrementally; it would be constitutionally inappropriate for judges to undertake major exercises in judicial legislation and it is unlikely that any would wish to do so. John Griffith complains that judges are too ready to support the status quo, and that may be so, but perhaps such a tendency is no bad thing if that attitude, coupled with a binding system of precedent, prevents judicial radicalism and ensures that changes to the law other than incremental developments, are left to the legislature. Having said that, courts must make decisions that no-one else can or will make, and these decisions will represent significant choices for the community. Even if their most important responsibility is to interpret the law in such a way that it fits comfortably into a coherent whole, still what counts as a comfortable fit will without doubt need value-judgements by the judge concerned. When they have an option, judges should keep away from judgements on policy and social choice based on issues of fact of which they are ignorant, or issues of value for which they are unaccountable. However, they do not always have an option, and consequently the values and ideology of the bench still have the capacity to decisively alter the flavour of public policy in this country.BIBLIOGRAPHYTEXTBOOKS/ JOURNALS/ REPORTSN. E. Simmonds, Central Issues in Jurisprudence, 2nd Edition, Sweet & Maxwell, (2002)Michael Freeman, Lloyd's Introduction to Jusriprudence, Sweet & Maxwell, (2001)J. W. Harris, Legal Philosophies, 2nd Edition, Butterworths, (2000)J. G. Riddal, Jurisprudence, 2nd Edition, Butterworths, (1999)Jeremy Waldron, The Law, Routledge Publishers, (1997)W. Morrison, Jurisprudence - From the Greeks to Post-Modernism, Cavendish Publishing, (1997)C. O. Boulder, Jurisprudence: Theory and Context Boulder, Westview Press, (1996)Bernard. S. Jackson, Making Sense in Jurisprudence, (1996)N. Duxbury, Patterns of American jurisprudence, Oxford, (1995)H. L. A. Hart, The Concept of Law, 2nd Edition, (1994)John Griffith, Judicial Politics Since 1920, A Chronicle, Blackwells, (1993)Natural Law Theory: Contemporary Essays, Oxford: Clarendon Press, (1992)Simon Lee, Judging Judges, Faber & Faber, (1989)Ronald M. Dworkin, Law's Empire, Cambridge: Harvard University Press, (1986)H. L. A. Hart, Essays in Jurisprudence, and Philosophy, Oxford, Clarendon Press, (1983)D.N. MacCormick, Legal Reasoning and Legal Theory, (1978)Ronald M. Dworkin, Taking Rights Seriously, Cambridge: Harvard University Press, (1977)W. Tining, K. Llewellyn and the Realist Movement, London, (1973)Harold Lasswell, Politics: 'Who Gets What When, How', New York, Meridian Books, (1958)"Negative and Positive Positivism," 11 Journal of Legal Studies 139 (1982)Positivism and Fidelity to Law--A Reply to Professor Hart," 71 Harvard Law Review 630, (1958)"Positivism and the Separation of Law and Morals," 71 Harvard Law Review 593, (1958)Lord Denning - Misuse of Power, The Richard Dimbleby Lecture (1980)International Journal for the Semiotics of LawWEBSITESwww.westlaw.co.ukwww.butterworths.co.ukwww.infolaw.co.ukwww.venables.co.ukhttp://www.utm.edu/research/iep/n/natlaw.htmhttp://www.legaltheory.demon.co.uk/default.htmlhttp://library.ukc.ac.uk/library/lawlinks/http://www.ilrg.com/nations/uk/www.law.ox.ac.uk/jurisprudence/www.bbc.co.uk


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