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 changing the law.
The law lords may step in if they feel there is a clear public agreement on how the law should develop. On other occasions, when there is no consensus and therefore no prospect of Parliament acting, they will act, although with some reluctance. Either way, they are likely to be criticised for developing the law in a particular direction without the agreement of Parliament (and the public). Despite the critique, sometimes, particular decisions just need to be made.
Establishing the law: the martial rape-case
For more than 250 years the law allowed a man to rape his wife.
‘the husband cannot be guilty of a rape committed by himself
upon his lawful wife, for by their mutual matrimonial consent
and contract the wife hath given up herself in this kind unto her
husband which she cannot retract.’
Sir Matthew Hale
This 17th century statement was regarded as accurate until the Second World War.
Gradually, however, the courts started allowing exceptions to it, but it took until the nineties -while there still wasn’t any statute on this topic- that rape, in marriage, became a crime. The husband took his case all the way up to the House of Lords, and even to the European Court of Human Rights. The law lords upheld his conviction by stating ‘The common law is … capable of evolving in the light of changing social, economic and cultural developments’. The Court of Human Rights unanimously dismissed the claim of the husband that his conviction was amounted to a breach of article 7 of the Human rights Convention.
The rulings were widely welcomed. The judiciary made it easy for the legislator, the judgements were put on to a statutory footing. Although this was unnecessary, it served to remind the courts that Parliament still felt it had some role to play in the law-making process.
Not always is the government pleased with the judgement of the court, for example when the courts exercise a supervisory jurisdiction on matters such as the limits of an authority’s powers, which affect the legality of official decisions. The judicial control, which exists even when there is no right of appeal against the administrative decision, doesn’t go into the merits, expedience or efficiency of decisions. It ensures that decisions are made on such grounds conform to the law and that standards of fair procedure are observed.
Judicial review: the GCHQ-case
When a power vested in a public authority is exceeded, acts done in excess of the power are invalid as being ultra vires. The ultra vires rule cannot question the validity of an Act of Parliament, but it serves to control those who exceed the power they have been given by an Act. Judicial review on the other hand, covers all acts taken under the prerogative. Judicial review is judge-made law; the rules to keep someone, who is given a discretion, in line, are generally set up by the courts.
In 1984, in the famous GCHQ-case, the criteria for judicial review were reformulated. The first one is reasonableness, or irrationality as Lord Diplock calls it, what means that if a decision is challenged as unreasonable, the court must decide whether the power under which a decision-maker acted has been improperly exercised. The second, procedural impropriety, points out the failure to act fairly, i.e. the decision-maker did not follow the correct procedure. The third one I mentioned above, is the ultra virus rule. Lord Diplock also suggested a fourth ground for judicial review, proportionality. This ground, the balance between the aims of the policy and any adverse effects it may have, is now established in English law.
In the GCHQ-case, were it was held that a politically very sensitive decision, the banning of trade unions at Government Communication’ Headquarters, made by the Prime Minister, should in principle have been preceded by consultation. The House of Lords hold that the exercise of prerogative powers may be subject to judicial review, just as the exercise of statutory powers may be. Of the different grounds of review, procedural impropriety was the most relevant, i.e. the trade unions should have been consulted in advance. Nevertheless the governments decision was allowed on grounds of national security.
The fares fair-case
One of the most problematic aspects of the policy-making process lies in determining how much room should be allowed for party-political considerations. Probably the best known and most controversial cases is Bromley London Borough Council v. Greater London Council in which the policy of elected local government councillors fell to be considered. One of the issues was the policy-making process that had produced the “fares fair” policy. The Court of appeal held that it was illegal to subsidise fares from rates, and so, because the increase in the subsidy payable by ratepayers, the GLC was in breach of the fiduciary duty which it owned to the London ratepayers.
This time the ruling was not welcomed by everyone, the popular press was all over the judges, asking who elected them. An important element of Dworkin’s premises is the respect for the democratic process and the requirement for a democratic mandate in order to enter policy decisions. Another contention in this regard is that any police decision on the part of the judge would since it was not drawn from already existing statements about rights be retrospective law making on his part and therefore unfair to the disputants.
Judicial restraint
As we have seen above, the courts sometimes go too far in their law making. At those times judges forget that they are not the legislative (they don’t have the means), and that the (local-) government is! Judges are not democratically elected and should therefore only intervene with a policy when it fulfils the criteria for judicial review and the policy is not largely a value judgement.
Several reasons can be given against the reopening of policy issues, the most important ones are that the judges don’t have the means to review the policy, that policy issues should be examined in a formal, quasi-inquisitorial forum, or conversely that policy issues are better aired informally, in an advisory committee, or that it is too time-consuming (i.e. on the end, judges are there to arrange disputes).
The Smith-case
In this (also famous) case, the four applicants had been serving member of the armed forces until they had been administratively discharged because they had a homosexual orientation contrary to the Ministry’s policy. In their application for judicial review they claimed the policy was irrational, contrary to Art. 8 of the European Convention on Human Rights and contrary to Art. 2 of the Equal Treatment Directive. The Ministry’s policy was (therefore) a controversial one.
This time the Court of Appeal held that the policy was not irrational, although Simon Brown LJ said that ‘so far as this country’s international obligations are concerned, the days of this policy are numbered’. The judges did not dare to intervene this time, mainly because the Defence Committee did not recommend any changes to current policy in its 1995/1996 rapport. The minister’s decision was clear, the court couldn't interpret it ‘differently’. Next time they may change the law on this point, but for now the judiciary recognised the legislative supremacy of Parliament.
What does Ronald Dworkin say?
As said in the introduction, I will focus mainly on R. M. Dworkin, on his two books Taking Rights Seriously and Law’s Empire including his criticism on H.L.A. Hart’s points of view.
Taking Rights Seriously
In Taking Rights Seriously, Dworkin rejects the notion, which he attributes to positivists, that law consists of rules, and that when rules run out in a particular case, the judge has discretion. Rather, a judge is bound by principles. These principles are developed from previous institutional material, those based on principle rights can be used by the judges. These principles provide answers to all legal cases; the reasons never run out. This means a judge has no (strong) discretion to make law, i.e. no freedom to take decisions not covered by the available institutional material.
Dworkin summarises positivism in three ‘ideas’:
_ Laws are rules, identified by a test of pedigree and not content.
_ Outside rules, judges are not bound: they have discretion.
_ There is only a legal obligation if there is a legal rule.
The problem with the positivist theory is, says Dworkin, that they do not include the notion of legal principles. Dworkin sees more law than the positivist (Hart), everything –in the context of the culture of law- is, if better arguable than competitive opinions, law. The legal system, he claims, provides an authoritative answer to every case, even when that case is not covered by a rule.
Dworkin seemed to suggest that principles could even override rules, by giving an example of an US case. In that case the rules of succession were not followed because that would have resulted in the murderer of the deceased taking the estate, contrary to the principle that no one can benefit from his own wrong. We can draw a parallel with the martial rape-case discussed above, were the principles (i.e. rape is always forbidden) were found more important than the law. However, Dworkin now seems to have withdrawn from this position and says that principles only operate outside the rules regulated area.
The judge selects the principle by a process of reasoning. Dworkin shows how a judge should come to the right principles in a case, by giving the example of the perfect judge. In his Hercules-model, an omnicompetent judge, would take on board the institutional structure and political philosophy of the constitution, the statutes and the common law decisions, and form a total theory giving principles explaining it all.
Dworkin distinguishes two characteristics of principles showing that they differ from rules. First, counter-instances do not disprove a principle (although they do disprove a rule), and second, principles have weight. They do not operate in an all-or-nothing fashion, but can be balanced against each other.
He also makes a distinction between principles and policy, judges in hard cases should only apply principles, and not policies. Decisions generated by policy do not require any consistency, whereas those based on principle do require consistency, and give one of the parties to a later dispute a right to have a similar decision made in his case.
Two other reasons Dworkin gives for not allowing judge to make the law, is that if the judges had such discretion, the law would be retrospective. If the judges use the principles to ‘make’ new law, like in the martial rape-case above, that decision is not retrospective. Moreover, judges are not elected, and it would therefore be undemocratic to allow them to make law.
Law’s Empire
In Law’s Empire, judges should decide their cases in the light of principles of political fairness; substantive justice and procedural due process. In deciding what principle of law fits best, the judge looks at existing decisions. Again, there is always a right answer to every legal question, the only difficulty being in finding it. The right answer must be found in the principles that are, according to Dworkin, existing statements about rights. The judge must not refer to policy in the sense of statements about goals to be achieved by the legal system, as this is the proper preserve of the legislature.
As we have seen above, the fair fares-case was an example how not to judge. Dworkin tries to protect the judiciary from the type of criticism they were exposed to after that ruling.
Some critics on Dworkin
Dworkin claims that his theory explains both that how judges do behave (descriptive) and how they should behave (prescriptive). Prescriptively, his theory might be true, but descriptively probably not. Judges do not form anything like the complete theory of institutional material. And as perfect humans do not exist, nor do perfect judges.
Another problem on Dworkin’s theory, is when the rules run out, there are always principles, legitimate reasons to get to the right answer. There is no uncertainty, and therefore judges don’t have discretion. I don’t believe that, there are still gaps in the law, even when law includes the principles, i.e. ‘the law’ does not cover everything and it never will.
A reason for Dworkin to say that law never runs out, is the ‘fact’ that judges never say there is no relevant law i.e. although judges do not frame their decisions in such terms does not mean they are not actually acting in such a way. For example the Ladies Directory-case, in which it was sure at all that there existed any law on the matter yet the courts created a jurisdiction to safeguard the nation against ‘a conspiracy to corrupt public morals’.
But even if their decision was based on principles of law, it would be those principles that fitted best by their ruling, i.e. if the court wants to make a particular ruling, it will. Dworkin’s judges discover these principles through a process which involves a heavy use of their own political views.
Using ‘the principles’ can not solve the complaint about retrospectivity, that the parties do not know what law will be applied in their case if the judges make the law. Judges may find different principles important and therefore come to different
results…
Conclusion
I think Dworkin’s attempt to show that there is or even should be no judicial discretion ultimately fails. Judges do not engage in the (complex) process of forming an institutional thesis, nor do they limit themselves solely to arguments based on principles not policies. And, probably, nor is there always one right answer to a case.
‘The judges who finally decide the case will have been legislating,
though they will sincerely, consistently, and rationally believe that
they have not. By making a choice determined by their subjective
moral judgements for which they honestly but mistakenly claim
objective validity, they will have been making law an issue on
which there was previously no determinate law, on which they
had no antecedent duty to decide one way rather than the other,
and on which neither party had a right to a decision in his favour.’
John Mackie
Judges will be making the law, as long as the legislative is making statutes containing vague norms. Not much can be done about that, not even when the judges apply the principles of law in their judgements. A strong judiciary, i.e. a judge with discretion, might even be welcome, as the executive and legislative function are being ‘under one roof’. A balanced constitution, where the judiciary gives weight against the administration, is a good thing.
Bibliography
Taking rights seriously - Dworkin, Ronald M
London, Duckworth, 1977
Law's empire - Dworkin, Ronald M
London, Fontana, 1986
Is Law a System of Rules? - Dworkin, Ronald M
In: The Philosophy of Law
Edited by: R.M. Dworkin
London, O.U.P., 1977
Jurisprudence & Legal Theory - Rowel, Genn
London, HLT Group, 1988
Ronald Dworkin & Contemporary
Justice - Marshall Cohen
London, Duckworth, 1983
New Directions in Judicial Review - J.L. Jowell, D. Oliver
London, Stevens, 1988
Trial of Strength - Joshua Rozenberg
London, Richard Cohen, 1997
Constitutional & Administrative Law - Michael Allen, Brian Thompson
(Cases & Materials)
London, Blackstone, 1996
Constitutional & Administrative Law- A.W. Bradley, K.D. Ewing
London, Longman, 1997
England because its lack of a written constitution.
Maybe to their own believe, but probably under pressure of the king or other rulers.
Lord Mackay in ‘Parliament and the Judges – a Constitutional Challenge?’, speech to the Citizenship
Foundation, 8 July 1996
This essay is not the place to discuss the pro’s & con’s to the fullest, further information can be found
in every constitutional and administrative handbook. However I will take a broader look at the
arguments brought in by Dworkin on this subject.
Lord Reid in [1971] A.C. 610, H.L. and see R. v. Secretary of State for the Environment, ex p. Brent
London Borough Council [1982] Q.B. 593, D.C.
Court of Appeal, October 30, 1986
Tribunals and inferior courts are bound by decisions of higher courts on matters of law and
jurisdiction, see Tribunals and inquiries Act 1992, ss 11, 12; ch 28 A
The courts are obliged to give a judgement in a case when asked to do so, see Art 6 ECHR.
Reg. v. R. [1992] 1 A.C. 599
in History of the Pleas of the Crown, published in 1736
Lord Keith, see footnote 7.
Article 7 prohibits retrospective criminal legislation.
s. 142 of the Criminal Justice and Public Order Act 1994
Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374
The criteria were formulated in several previous cases, like the Padfield case and the
Wednesbury case.
Associated Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, 229
Lord Diplock calls it ‘the duty to avoid illegality’ (i.e. lawfulness)
R. v. Ministry of Defence, ex parte Smith, [1996] QB 517
HC 143 (1995-1996), para 34
Riggs v. Palmer 115 NY 506 (1899) 22 NE 188
This includes a moral dimension; Hercules’s judgement about what the law is on some specific issue
depends on what he finds to be the best explanatory and justificatory theory of the settled law.
The European Court on Human Rights did not think the decision in that case was retrospective, see
page 6.
Shaw v. DPP [1962] A.C. 220, 228 (CCA)
‘The Third Theory of Law’, in ‘Ronald Dworkin & Contemporary Jurisprudence’