Kairys’ critical theory of law states that judges do have freedom in precedent, that their decisions are based on ‘a complex nature of social, political, institutional, experiential and personal factors’, and the precedents they reach reflect these views. This is true of Donoghue v Stevenson 1932, a significant development in the tort of negligence. The ‘neighbour principle’ established in this case was based on the Christian belief held by Lord Aitken. As this was original precedent based on the personal belief of one person (although shared by many at that time), it shows that judges often do not set precedents that do not reflect their views. The critical theory also argues that legal decisions uphold existing power relations in society, and this can be further explained by Griffith’s Marxist view regarding judges. Griffith believes judges make decisions according to public interest, but what they view as public interest is clouded by their background, which is usually that of a white, upper class, Oxbridge educated man. Public policy is a highly important and often affects the outcome of high profile cases, such as that concerning Ian Huntley, but Griffith argues that judges assume public interests to be the same for all sections, ignoring different groups and their individual interests. This shows that judges can find ways to develop the law in the directions they desire, as their personal interests will justify the decisions they make.
John Locke stated in 1690 that ‘it may be too great a temptation to human frailty … for the same person to have the power of making laws, to have also in their hands the power to execute them’. Locke’s view is the basis for Montesquieu’s theory on the ‘separation of powers’, which states that the law would be unfair if it was enforced in the way referred to by Locke. Montesquieu believed the law could only be fair when the legislature (Parliament), the executive (cabinet, civil service) and the judiciary (judges) were separate, and did not intertwine. The aim being, that those who created the law would not have any say in how the law was enforced, and so no one group would be in total control of society. However, this has not always been the case in English law, judges do make law. Moreover, the role of Lord Chancellor (now abolished) meant that Lord Woolfe was a speaker in the House of Lords and a senior government minister, and yet headed the judiciary and was responsible for the selection of the judges. The overlap between the powers shows that there are not so many constraints on judges, as if this were so; they would not be law makers.
As briefly mentioned, judges, like Parliament have the power to make laws. There are advantages and disadvantages of this. It is a lot quicker to introduce common law than statute law; legislation goes through a long process before coming law. This is important as the law must adapt to the changing needs of society and its morals. Also, as judges are seeing a case unfold before their eyes, they have a greater knowledge of how the law needs to be decided to see that justice is served. From this, it is easy to see how important a role judges play, Parliament on the other hand cannot ‘tailor make’ their law to suit everyone and this can come up with unjust results. For example, in the case concerning Diane Blood, who wanted her dead husband’s sperm to have his child and name him as the father on the birth certificate, this would have been impossible under statute law, which requires the written consent of the biological father. However, under common law, the judges were able to give a relatively quick result that enabled the posthumous naming of Diane Blood’s child. Similarly, in the case of Miss B, who was of sound mind and wanted her life-support machine to be switched off, the courts justified their decision of granting her the right to die by saying she was refusing her medication, an option open to cancer patients undergoing chemotherapy. Had the judges not acted, and left it for Parliament to legislate on, it is unlikely that such a decision would have been reached for fear of the ‘floodgates’ principle. The disadvantages of having judges create law include unfairness. It would not be acceptable for Parliament to exercise the job of judges, so why should judges be allowed the extra power? However, it could also be argued that the matter of judges creating law was around long before the idea of Parliament and law making being in their hands.
Nevertheless, there are several ways in which judges can avoid previous precedent. Overruling was seen in R v R 1991 (discussed earlier) and more recently in R v G and R 2003. Here it was ruled that Caldwell recklessness (concerning the objective approach of the ‘reasonable man’) was ‘no longer acceptable’. The House of Lords held that a ‘defendant could not be criminally liable for damage to property if they did not genuinely perceive the risk’. The courts may also reverse a decision, as seen in Sweet v Parsley 1970, where a higher court goes against the decision made by lower court. In this case, the defendant was convicted under the Dangerous Drugs Act 1965 by the High Court, but the House of Lords reversed this decision, claiming that the matter required a blameworthy state of mind. Courts are also able to distinguish between cases, which refers to cases having the same material facts but not having the same outcome due to important differences that must be considered. This can be seen in Balfour v Balfour, where the same rules did not apply to the similar case concerning matrimonial disputes of Meritt v Meritt.
Perhaps most importantly, the Practice Statement of 1966 allows judges to ‘depart from a previous decision when it appears right to do so’. The Practice Statement is particularly significant, as it allows the law to keep up with a changing society, and come to decisions which suits the society of the time. This explains why the decision in R v R was as it was. Similarly, with R v G and R, the overruling of Caldwell Recklessness reflects society’s attitude that those of a young age or those who have a low IQ or are mentally disabled, should not face the same consequences as ‘the reasonable person’. Overruling, reversing, distinguishing and the Practice Statement show that judges are often able to develop the law in the direction they desire, and that constraints can be overcome with these tools.
However, it must not be forgotten that judges are subservient to Parliament and this can be considered to be the biggest constraint the judiciary face. Parliament must remain supreme, as they were democratically elected, judges were not. It can be said that even though Parliament was elected, they are often not personally responsible for the creation of law, as seen through the issue of delegated legislation. The delegation was not elected either, but there appear to be no qualms about law being created in that way. Also, judges can easily remain subservient to Parliament while choosing the direction to follow, for example, judges choose which approach to use in statutory interpretation, and this is what decides the outcome in all cases. As different approaches may have a different outcome in the same case, the judges role is highlighted here, as ultimately it is in their hands what the result will be.
To conclude, the statement that judicial precedent and statutory interpretation only appear to impose constraints on what judges may do is true. Although the rules of both are clear cut, there is room for judicial creativity that can achieve the aims of both while also reaching justice. Parliament remains supreme, and although this may seem an even bigger constraint, the just decisions judges have been able to achieve in landmark cases suggest otherwise.