The judicial process: should judges ever make the law?

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The judicial process: should judges ever make the law?

Martin Brinkhuis

2a Marley Court

Parkwood

University

Canterbury

Kent

[email protected]

‘Pour qu’on ne puisse abuser du pouvoir.

il faut que, par la disposition des choses,

le pouvoir arrête le pouvoir’

Montesquieu ‘De l’esprit de lois’ 1748

Index

Page        4        -        Introduction         

Page        5        -        Should judges be allowed to make the law?

                        Review of a policy

Page         6        -        Establishing the law: the martial rape-case

                        Judicial review: the GCHQ-case

Page         7        -        The fares fair-case

Page         8        -        Judicial restraint

                -        The Smith-case

Page        9        -        What does Ronald Dworkin say?

                -        Taking Rights Seriously

Page        10        -        Law’s Empire

                -        Some critics on Dworkin

Page        11        -        Conclusion

Page        12        -        Bibliography

Introduction

Judges have been making new law for at least 700 years. For most of that time, they tried to hide this uncomfortable fact from public: they called judge-made law the common law, as if to suggest it has always been with us, permanent and unchanged.

In order to disguise the reality of the law making process, legal writers of the eighteenth and nineteenth centuries maintained that the common law consisted of ancient customs and usage’s that had been known by the judges. According to this the judges’ job was to expound, declare and publish the law; their decisions were not law but merely evidence of what the law has always been.

Although this theory does not sound strange, I –and with me many others- cannot concur with it. I think that here in England and even –in earlier times- in the rest of Europe, the judges were actually making the law and therefore making a policy.

        

        “….practically the whole framework of the modern law … was

constructed by the judges in a conscious policy of moulding and

adopting the principles of the common law in a response to the

        changes of society.”

        

        Lord Chancellor Lord Mackay        

Nowadays, the primary function of law making rests with Parliament. The government, the executive branch, must act within the law and the courts must apply and give affect to it. The courts still play a major role in developing the common law, but that role is just in developing, not creating wholly new law, says Lord Mackay.

Mackay’s standpoint (based on Montesquieu’s Trias Politica) does not answer the

essay question ‘Should judges ever make law?’. Although there are many opinions on this subject, I think that by developing (and by interpreting) the law, the judges make the law or at least declare the law. Because from the moment the judge ‘develops or interprets’ the law, that law is, how the judge said it is. The question then should be, how far can the judges go in their law making/declaring?  

First, I will take a short look some pros and con’s of judges making law in the next paragraph, while reviewing some (important) cases. Then, I will concentrate on R. M. Dworkin’s (and H. L. A. Hart’s positivist) views on this topic.

Should judges be allowed to make the law?

Review of a policy

Most areas of state activity are covered by existing policies. From time to time, a question arises whether existing policy should be reviewed in the light of new evidence about its effectiveness or appropriateness. In principle, courts accept such a duty. For example, in British Oxygen Corporation v. The Ministry of Technology the policy at issue had been expressed in the form of administrative rules, made for reasons of convenience and expediency and contained little ideological or party political content.

If this is the case -there is no high value content in the policy- the policy-maker ‘ought to listen to a substantial argument reasonably presented urging a change of policy’ and may even have to change that policy if that is the reasonable thing to do.

Presumably if it could be established that a public authority had found its policy to be ineffective or even wrong, the courts would be willing to require a policy review if the authority failed to conduct one. The Master of the Rolls stated in R. v. Oxford, ex p. Levey, ‘…Any officer who found that his chosen methods were [proven] ineffective would be under a duty to re-examine them and consider what alteration was required…’    

Most policies are a mixture of facts and value judgements, if the decision is mainly based on facts, it should be possible to establish the rationality of the policy. But,

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if the facts are of minor importance when weighed against the element of value judgement in the policy, it would almost be impossible for the courts to establish that a policy is wrong, and therefore it hardly happens.

If the law is changed, it is mostly done by The House of Lords. The highest appellate court in the United Kingdom is often asked to change the law and sometimes it agrees. Because the judges are aware of the fact they are not elected, and therefore not democratic legitimate, they are very careful –as we will see later on- in ...

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