Examine the Controversy that Surrounds the Question of What Judges are Doing When They are Deciding Cases

Examine the Controversy that Surrounds the Question of what Judges are doing when they are deciding Cases.

If we accept the hypothesis, that judges do indeed make law through their decisions, we need to look closely at the judges themselves to decide whether they are capable of performing that function. Judges are not, in this country, elected, as are the other law-makers (the legislators). If judges had no law-making role, then the uncertainty over judicial decision making would not arise; it would not matter whether the judiciary was representative of the society within which it operates, or whether it was capable of acting impartially. Lord Denning stated that: "Every judge on his appointment discards all politics and all prejudices. You need have no fear. The Judges of England have always in the past - and always will - be vigilant in guarding our freedoms. Someone must be trusted. Let it be the Judges." However, if judges were simply applying the law when making decisions, then it would not matter who was fulfilling that role, because, everybody would reach the same decision in every case, unless a judge happened to misapply the law, in which case another court could put him right. But judges reach very different decisions upon the same facts; there is no common agreement as to what the law is, and Hart argues that in many cases the judges are not only applying the existing law, but they are making new law. Another question which must be addressed is whether or not the largely similar background of judges results in judicial clones that not only think alike but tend to think along conservative or at any rate 'establishment' lines. Positivists, such as Herbert Hart, argue that judges require discretion to fill in criticism gaps. On the other hand critics of Hart, such as Ronald Dworkin, state that decisions in hard cases should be made through the use of legal principles not just rules. Judicial decision making is a very controversial issue in jurisprudence and there are many opposing arguments from positivist and natural law perspectives.

The significance of Dworkin’s attack on conventionalism, in general, and legal positivism, in particular lies in the failure of such theories to provide either a credible account of the process of law-making or a sufficiently strong defence of individual rights. In the case of McLoughlin v O’Brian the plaintiff was informed by a neighbour that her husband and four children had been injured in a motor-car accident. The neighbour drove her to the hospital where she saw her husband and sons seriously injured, and she was told that her daughter had died. She suffered nervous shock from this experience and sued the negligent driver who caused the accident. As the law stood, a plaintiff could recover damages for nervous shock only where he or she had actually witnessed the accident or arrived at the scene of the accident immediately after. However, the House of Lords reversed the decision of the court of appeal and unanimously held that, despite precedents to the contrary, the plaintiff (Mrs McLoughlin) could recover damages for nervous shock. On ‘policy’ grounds the Law Lords held that there was nothing in the law to prevent the plaintiff from succeeding. Controversially, Lord Scarman stated that: ‘Policy considerations will have to be weighed; but the objective of the judges is the formulation of principle. And, if principle inexorably requires a decision which entails a degree of policy risk, the court’s function is to adjudicate according to principle leaving policy curtailment to the judgement of parliament’ Dworkin praised Lord Scarman, but he failed to emphasize that the other judges were horrified by these sentiments. As it happened, both Lord Scarman and his colleagues reached the same result in this particular case, but nobody bar Dworkin would want to claim that this isolated passage by lord Scarman had by this stage elevated his US doctrine in British judicial practice.

Although it is difficult to determine the ratio of the case it is clear that, in formulating the law, the House of Lords arrived at a decision on the basis of what it regarded as the law. Therefore, according to Dworkin, a conventionalist would say that in this case there is no law and that the judge must therefore exercise a discretion and make new law which is then applied retrospectively to the parties in the case. However, Dworkin believes that ‘…propositions of law are true if they figure in or follow from the principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community’s legal practice’ Therefore, in McLoughlin v O’Brian deciding whether the plaintiff should recover involves deciding whether legal practice is seen in a ‘better light’ if we assume the community has accepted the principle that people in her position are entitled to receive compensation. In other words, in Dworkin’s vision of ‘law as integrity’, a judge must think of himself not (as the conventionalist would have it) as giving voice to his own moral or political convictions, or even to those convictions which he believes the legislature or the majority of the electorate would approve. The judge would see himself ‘as an author in the chain of common law’. As Dworkin put it ‘He knows that other judges have decided cases that, although not exactly like his case, deal with related problems; he must think of their decisions as part of a long story he must interpret and then continue, according to his own judgement of how to make the developing story as good as it can be.’ Therefore, according to Dworkin there is, ‘no law beyond the law’; contrary to the positivist thesis, there are no ‘gaps’ in the law. He argues that law and morals are inextricably entangled and therefore there cannot be a rule of recognition by which to identify what is ‘law’. Nor does law, as a union of primary and secondary rules, provide an accurate mode, because it fails to account for principles and policies.

In July 1981, the Greater London Council implemented a resolution which was contained in the Labour party manifesto to the effect that, if re-elected, the Labour council would reduce transport fares by 25% and would meet that cost by increasing the general rate. On that ticket, the Labour council was indeed re-elected, and did as they had promised. Bromley London Borough Council, which was itself affected by this policy, brought an action in the High Court claiming that the GLC was acting outside the powers conferred by the act of Parliament. The relevant Act empowered the GLC to: "develop policies, ...

Examine the Controversy that Surrounds the Question of What Judges are Doing When They are Deciding Cases

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