Legal Skills

The film responds to the complexities of the judge’s role, it raises questions about when should a judge follow the law and when should he resist it or twist it? When must a judge walk out rather than carry out an immoral law? Which laws can be classified as wicked and illegitimate as the German blood protection law?

J.A.G Griffith’s stated that the senior judiciary must determine what is the ‘public interest’, and that this is based on their own corporate values. ‘The judges define the public interest, inevitably, from the viewpoint of their own class.’ As all senior judges tend to share the same values. They are all privately educated, attended well respected law schools, shared training and experience at the Bar and are either middle or upper class citizens. Thus, they share similar attitudes and beliefs regarding the law. He also contends that, ‘ The principal function of the judiciary is to support the institutions of the government as established by law. To expect a judge to advocate radical change is absurd.’

Lord Devlin disagrees quite strongly with Griffith. He puts down his own thoughts such as the product of age, which is that maturity brings about conservatism and age brings about orthodoxy. ‘Since he is writing of men in their sixties and seventies whose working life has given them a common outlook on many questions, by no means political, I have very little doubt that he is right… What matters after all is not whether judges have the political prejudice of their age or upbringing, but whether or to what extent they allow the prejudice to get into their judgments.’ 

He also argued that judges do not always agree with each other. ‘The law lords are sometimes divided: more frequently they quarrel with the Court of Appeal.’ He observes the ‘compression’ of Griffith’s work, as well. ‘The scale of the work does not permit and analysis of the cases.’ Lord Devlin argues that Griffith’s thesis ‘is that the small group of senior judges who are policy makers is engrained with the belief that the stability of their society is supreme law. In the main he tries to induce this from results of their decisions. But, he does also decorate the thesis with some examples of specific bias, mostly from judges outside the group.’ And, he therefore concludes that the main reason he was trying to bring up turned out to be infertile. Devlin offers a pragmatic deal, which is that we should make the best of what we got.

By analyzing both arguments it seems to be that they are both trying to put the same message across by using different words. ‘Professor Griffith argues that all judges, irrespective of their social class or the country in which they sit, are members of the Establishment who favor the status quo. Lord Devlin contends that judges tend to be ‘mature, safe and orthodox men’.  The main purpose of Devlin’s thesis was to look into the function of the judge, which he states is the fair-minded application of the law.  Devlin felt that the key skill for a judge was impartiality, which means you are unable to restructure the law. If you argue with the law, then you lose impartiality.

The main purpose of Professor John Griffith thesis was to prove that ‘judges generally were biased in their approach to certain issues not so much because of their social background as because of the nature of their function. According to this thesis the judge, by virtue of his office, is mainly concerned to uphold and maintain the status quo and therefore inevitably tends to find shared outlook but that it was a consequence of age not class as he is primarily talking of the senior judges in the House of Lords and the Court of himself in conflict with any groups in society whose purpose is to seek change- the more so if they proceed by other than conventional methods.’

The main role of the judiciary is the adjudication of disputes and as Lord Wilberforce stated is ‘making decisions, which are in accordance with the available evidence and with the law.’ Adjudication means the discovery of the facts and the application of the law to those facts based either on statutory construction and/or by the application of precedent.

Statute law is the ascertainment of the intention of the legislature. The judiciary doesn’t make law in this context rather they read and declare the law made my parliament (the declaratory theory). In Duport Steels Ltd v Sirs , Lord Scarman said: ‘ the constitution’s separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk… confidence in the judicial system will be replaced by fear of it becoming uncertain and arbitrary in its application. Society will them be ready for Parliament to cut the power of the judges.’ He meant that judges must stick to the language of legislation even at the expense of their own notions of justice or policy. However language is not often clear-cut. ‘The courts therefore assume that Parliament must have intended its language to be understood in the context of widely shared assumptions about the principles and values of the constitution. These in turn may not be clear or may be derived from the values held by a narrow group of powerful people such as lawyers. An important corrective in this context is the rule of law idea that enactment should be read as those subject to it are likely to understand it.’

Common law is the traditional unwritten law of England, based on custom and usage. Lord Simon in Jones v Secretary of State for Social Services  stated that the idea of Parliamentary sovereignty is unrealistic as judges discover the law. ‘ The facts of precedent are always vividly remembered as the background against which all proposed general formulae must be understood. Facts are like safe, dry ground: when judges venture on to the sea of abstraction, they try at least to remain within sight of the coast. This primary of the facts, this preference for the concrete, this reluctance to use general concepts and abstract legal ides is one of the main characteristics of the common law.’    ‘ The rule of precedent is an essential chain in the argument which establishes the judge’s impartiality, and is therefore an instrument of effective and convincing adjudication. To know that his decision will be treated by the law as setting a persuasive, or even a binding, standard adds to the burden of responsibility felt by the judge. It is a powerful reminder that the judge’s duty is to base his decisions upon rules fit for general application rather than upon factors which may raise doubts as to his impartiality.’

However, uniformity of the law does not lead to be beneficial when it becomes ‘uniformity of oppression’. ‘The social interests served be symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare.’ In order to know if and when one interest offsets another, a judge must seek his answer from life itself that is through experience and study. He fills the gaps in the law. ‘Even within the gaps, restrictions are not easy to define, but felt, however impalpable they may be, by every judge and lawyer, hedge and circumscribe his action. They are established by the traditions of the centuries, by the example of other judges, his predecessors and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law…. Nevertheless, within the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative.’ 

In order to reconcile disputes, a judge must be able to identify with both parties in order to understand their personas, their interests and place in the specific dispute, this will allow him to gain an understanding. However, during this time he should also maintain an attitude if impartiality. ‘Proximity breeds engagement. Although he has no personal stake in the case, he will nevertheless find his feelings invoked vicariously, on behalf of the various dramatis personate… It might be argued that a judge should act ‘purely rationally’ and that he can no longer do so once he allows his feelings to play any part in his decision-making. However, emotion is not incompatible with justice. If the judge’s empathic responses are to work impartially, they must, to adopt Cardozo’s famous words, be ‘informed by tradition, methodized by analogy, disciplined by system.’ So controlled, they are the essence of the judge’s sense of justice.’

The role of diplomacy available to the judge in deciding cases may vary depending on the level of hierarchy in court. David Robertson suggested that in the House of Lords, the individual opinion of the judges would play a large part in decision-making. ‘Law in almost any case that comes before the Lords turns out to be whatever their Lordships feel it ought to be.’ Lord Browne- Wilkinson too agreed with this view, ‘The judge looks for what are called ‘the merits’ and having found them seeks to reach a result, consistent with legal reasoning, whereby the deserving win and the undeserving lose…When we get to the judgment, we very seldom find any reference to ‘the merits’. The articulated reasoning purports to be based on a process of compelling legal argument leading inexorably to the result achieved…In the case of statutory interpretation, the courts have acted in much the same way.’

In conclusion, I agree with the view presented by Lord Radcliffe on the role of judge, it is as follows:

‘ I would not deny that, in a legal system such as that which we operate in this country, a great deal of a judge’s work involves no more than the practice of this science or skill of ‘reading off’. But the essence of that curious activity, the judicial decision, does not consist in that. The law has to be interpreted before it can be applied, and interpretation is a creative activity. The law was not there until that particular decision was given. Once it has been given, the whole enormous component, which is the body of the law, has changed its composition by the addition of a new element, significant or insignificant, which in some degree modifies the whole… it should be realized that judicial decisions, no matter who gives them, must always be related to certain basic beliefs about the nature and purposed of a human being which are held by another human being. In that sense he may not be ‘objective’; but he can be honest and fair.’

BIBLIOGRAPY:

• J.A.G. Griffith, The Politics of the Judiciary, 5th edn, 1997;
• Lord Devlin, Judges, Government and Politics, 41 Modern Law Review, 1978;
• M. Zander, The Law Making Process,6th edn, 2004;
• J. Alder, Constitutional and Administrative law, 5th edn, 2005;

      - H.K. Lucke, The Common Law: Judicial Impartiality and Judge- Made Law, 98 Law   Quarterly Review, 1982;

• B.N. Cardoza, The Nature of The Judicial Process, 1921;
• D. Robertson, Judicial Discretion in the House of Lords, 1998;
• B.S. Markesinis, The Impact of the Human Rights Bills on English Law, OUP, 1998;
• Lord Radcliffe, Not in Feather Beds, 1968.

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