McLoughlin v O'Brien [1982] gave rise to debates surrounding the area of policy and principle in cases, more notably, cases of tort.
Jurisprudence. Term 1 Assignment
In terms of legal theory the case of McLoughlin v O'Brien [1982]1 gave rise to debates surrounding the area of policy and principle in cases, more notably, cases of tort. Like many other cases in tort, this case centred upon the broad head of nervous shock for which the plaintiff sought to claim damages. Lord Scarman in particular was of the Dworkinian persuasion and put forward that judges should be guided by principles as opposed to policy and that policy should be left to the legislature or parliament:
'...the distinguishing feature of the common law is...judicial development of principle. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path...The policy issue where to draw the line is not justiciable... '
However, Lord Edmund-Davies was more open to the possibility of judicial decisions being policy orientated and accordingly said that Lord Scarman's proposition that the policy issue is not justiciable:
'...is as novel as it is startling...'
Accordingly it needs to be assessed which of these two opinions are correct in light of legal theory.
Or
The analysis of various legal theorem can be used to assess which of these two opinions are correct and to begin with, it is possible to analyse
Support of Scarman's opinion using legal theory
It can be found that Lord Scarman's opinion is synonymous with the views of Dworkin and this, on the one hand, can lead us to find that Lord Scarman's opinion has more weight and is perhaps the more correct approach. Taking the works of Dworkin as our starting point, he divides judicial impartiality into two parts of policy and principle. Principle is
In terms of legal theory the case of McLoughlin v O'Brien [1982]1 gave rise to debates surrounding the area of policy and principle in cases, more notably, cases of tort. Like many other cases in tort, this case centred upon the broad head of nervous shock for which the plaintiff sought to claim damages. Lord Scarman in particular was of the Dworkinian persuasion and put forward that judges should be guided by principles as opposed to policy and that policy should be left to the legislature or parliament:
'...the distinguishing feature of the common law is...judicial development of principle. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path...The policy issue where to draw the line is not justiciable... '
However, Lord Edmund-Davies was more open to the possibility of judicial decisions being policy orientated and accordingly said that Lord Scarman's proposition that the policy issue is not justiciable:
'...is as novel as it is startling...'
Accordingly it needs to be assessed which of these two opinions are correct in light of legal theory.
Or
The analysis of various legal theorem can be used to assess which of these two opinions are correct and to begin with, it is possible to analyse
Support of Scarman's opinion using legal theory
It can be found that Lord Scarman's opinion is synonymous with the views of Dworkin and this, on the one hand, can lead us to find that Lord Scarman's opinion has more weight and is perhaps the more correct approach. Taking the works of Dworkin as our starting point, he divides judicial impartiality into two parts of policy and principle. Principle is