Judicial Law-Making Essay

The independence of the judiciary was ensured by the act of settlement 1700, which transferred the power to sack judges from the crown to the parliament. Consequently, judges should theoretically make their decisions based purely on the logical deductions of precedent, uninfluenced by political or career considerations. The eighteenth century legal commentator, William Blackstone, introduced the declaratory theory of law, stating that judges do not make law, but merely, by the rules of precedence, discover and declare the law that has always been: ‘the judge being sworn to determine, not according to his private sentiments†¦ ot according to his own private judgement, but according to the known laws and customs of the land: not delegated to pronounce a new law, but to maintain an expound the old one’. Blackstone does not accept that precedent does not even offer a choice between two or more interpretations of the law: where a bad decision is made, he states, the new one that reverses or overrules it is not a new law, nor a statement that the old decision was bad law, but a declaration that the previous decision was â€Å"not law†, in other words that it was the wrong answer. His view presupposes that there is always one right answer, to be deduced from the objective study of precedence. Today, however, this position is considered somewhat unrealistic. If the operation of precedent is the precise science Blackstone suggested, a large majority of cases in the higher courts would never come to court at all. The lawyer’s concern could simply look up the relevant case law and predict what the decision would be, then advise whichever of the clients would be bound to lose not to bother bringing or fighting the case. In a civil case, or any appeal case, no good lawyer would advise a client to bring or defend the case that they had no chance of winning. Therefore, where such a case is contested, it can be assumed that, unless one of the lawyers has made a mistake, it could go either way, and still be in accordance with the law. In practice, thus, judges’ decisions may not be as neutral as Blackstone’s declaratory theory suggests: they have to make choices which are by no means spelled out by precedent. Yet, rather than openly stating that they are choosing between two or more equally relevant precedents, the courts find ways to avoid awkward ones, which give them the impression that the precedents they do choose to follow are the only ones they could possibly apply. Ronald Dworkin argues that judges have no real discretion in making case law. He sees law as a seamless web of principles, which supply a right answer – and only one – to every possible problem. Dworkin reasons that although stated legal rules may â€Å"run out† (in the sense of not being directly applicable to a new case) legal principles never do, and therefore judges never need to use their own discretion. In his book, ‘laws’ empire 1986†², professor Dworkin claims that judges first look at previous cases, and from those deduce which principles could be said to apply to the case for them. They then consult their own sense of justice as to which apply, and also consider what the communities’ view of justice dictates. Where the judges’ view and that of the community coincide, there is no problem, but if they conflict, the judges then ask themselves whether or not it would be fair to impose their own sense of justice over that of the community. Dworkin calls this the interpretive approach and, although it may appear to involve a series of choices, he considers that the legal principles underlying the decisions mean that in the end, only one result could possibly surface from any one case. Dworkin’s approach has been heavily criticised as being unrealistic: opponents believe that judges do not consider principles of justice but take a much more pragmatic approach, looking at the facts of the case, not the principles. Critical legal theorists, like as David Kairys (1998) take a quite different view. They argue that judges have considerable freedom within the doctrine of precedent. Kairys suggests that there is no such thing as legal reasoning in the sense of a logical, neutral method of determining rules and results from what has gone before. He states that judicial decisions are actually based on a ‘complex mixture of social, political, institutional, experiential, and personal factors’, and are simply legitimated, or justified, by reference to previous cases. The law provides a ‘wide and conflicting variety’ of such justifications ‘from which courts pick and choose’. The process is not necessarily as cynical as it sounds. Kairys points out that he is not saying that judges actually make the decision and then consider which precedents they can pick to justify it: rather their own eliefs and prejudices naturally lead them to give more weight to precedents which support both views. Nevertheless, for critical legal theorists, all such decisions can be seen as reflecting social and political judgements, rather than objective, purely logical deductions. Critical theory argues that the neutral appearance of so called ‘legal reasoning’ disguises the true nature of legal decisions which, by the choices made, uphold existing power relations within society, tending to favour, for example, employers over employees, property owners over those without, men over women, and rich, developed countries over poor, undeveloped ones. Griffith (1997) argues that judges make their decisions based on what they see as the public interest, but that their view of this interest is coloured by their background and their position in society. He points out that judges’ view of public interest assumes that the interests of all the members of society are roughly the same, ignoring the fact that within society, different groups, employers and employees, men and women, rich and poor – may have interests which are diametrically opposite. What appears to be acting in public interest will usually mean in the interest of one group over another, and therefore cannot be seen as neutral. Waldron, in his book ‘The Law’ (1989), agrees that judges do make law, and that they are influenced in those instances of law-making by political and ideological considerations, but argues that this is not necessarily a bad thing. He contends that while it would be wrong for judges to be biased towards one side in a case, or to make decisions based on political factors in the hope of promotion, it is unrealistic to expect a judge to be ‘a political neuter – emasculated of all values and principled commitments’. Although judges have traditionally seen themselves as declaring or finding rather than creating law, and frequently state that making law is the prerogative of the parliament, there are several areas in which they clearly do make law. In the first place, historically, a great deal of English law is and always has been case law, made by judicial decisions. Contract and tort law are still largely judge made, and many of the most important developments – for example, the development of negligence as a tort – have had profound effects. Even though statutes have later been passed in these subjects, and occasionally parliament has attempted to embody whole areas of common law in statutory form, these still embody the original principles created by the judges. Secondly, the application of law, whether case law or statute, to a particular case is not usually an automatic matter. Terminology may be vague or ambiguous, new developments and social life have to be accommodated, and the procedure requires interpretation as well as application. As we have suggested, judicial precedent does not always make a particular decision obvious and obligatory – there may be conflicting precedents, their implications may be unclear, and there are ways of getting round a precedent that may otherwise produce an undesirable decision. If it is accepted that Blackstone’s declaratory theory does not apply in practice, then clearly the judges do make law, rather than explaining the law that is already there. The theories advanced by Kairys, Griffith, and Waldron, all accept that judges do have discretion, and therefore they do to some extent make law. Where precedents do not spell out what should be done in a case before them, judges nevertheless have to make a decision. They cannot simply say that the law is not clear and refer it back to parliament, even though in some cases they point out that the decision before them would be more appropriately decided by those who have been elected to make decisions on changes in the law. This was the case in Airedale NHS Trust v Bland (1993), where the House of Lords considered the fate of Tony Bland, the football supporter left in a coma, after the Hillsborough stadium disaster. The court had to decide whether it was lawful to stop supplying the drugs and artificial feeding that were keeping Bland alive, even though it was known that doing so would mean his death soon afterwards. Several law lords made it plain that they felt that cases raising ‘wholly new moral and social issues; should be decided by the Parliament, the judges’ role being to ‘apply the principles which society, through the democratic process, adopts, not to impose their standards on society. Nevertheless, the courts had no option but to make the decision one way or another, and they decided that the action was lawful in the circumstances, because it was in the patient’s best interests. Thirdly, our judges have been left to define their own role, and the role of the courts generally in the political system, more or less as they please. They have, for example, given themselves the power to review decisions of any public body, even when parliament has said those decis ions are not to be reviewed. In addition, despite their frequent pronouncements that it is not for them to interfere in parliament’s law making role, the judges have made it plain that they will not, unless forced by very explicit wording, interpret statutes as encroaching on common law rights or judge made law. They also control the operation of case law without reference to parliament : an obvious example is that the 1966 practice statement announcing that the HOL would no longer be bound by its own decisions, which made case law more flexible and thereby gave the judges more power, was made on the courts own authority, without needing permission from parliament. The HOL has explained its approach to judicial law-making (which is likely to be the same for the Supreme Court) in the case of C (a minor) v DPP 1995, which raised the issue of children’s liability for crime. The common law defence of doli incapax provided that a D aged between 10 and 14 could be liable for a crime only if the prosecution could prove that the child knew that what he or she did was seriously wrong. On appeal from the magistrates’ court, the divisional court held that the defence was outdated and should no longer exist in law. An appeal was brought before the HOL arguing that the divisional court was bound by precedent and not able to change the law in this way. the HOL agreed and went on to consider whether it should change the law itself (as the 1966 practice statement clearly allowed it to do), but decided that this was not an appropriate case for judicial law making.