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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 ...view middle of the document...

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...

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