The Nature of Law - Essay Example

The Nature of Law Introduction: In answering the question “What is law?” Saint Augustine d: “Lex iniustanon est lex” (Unjust law is not law). This attributes a moral dimension to the law and natural law holds that the moral content and scope of law has a bearing upon its legal validity. Early legal theorists were of the view that the law is founded upon morality and the nature of the law is such that it while serving as a tool of justice, it must also contain a coercive element in order to ensure compliance from people. This has been later refined through the positivist approach which views the law as being framed within the context of primary rules which specify what individuals must not do and secondary rules which allow for some interpretative judicial function based upon the context within which the laws are operational. Natural Law: John Austin was of the view that “a law may be defined as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”1 Austin drew support from views advocated by Bentham, who was of the view that laws should be socially useful and not be restricted to merely expressing the status quo. He believed that the achievement of the greatest degree of happiness to the largest number of individuals is the foundation upon which morals and legislation should be set. He defines law as the signs that indicate the “volition conceived or adopted by the sovereign in a state”2 who conditions obedience and morality through the tools of “pain and pleasure … words which a man has no need… to go to a Lawyer to know the meaning of.”3 Austin supports Bentham’s views in that every legal norm needs to constitute a threat that is backed up by a sanction; therefore coercion is an essential feature of the law. Kelsen also supports the position that that the ability of the law to use the threat of violence where necessary and impose its rules through its coercive nature is its most important aspect. He states that a social order which seeks to bring about the desired behavior of individuals must inhibit socially harmful behavior with measures of coercion4. Therefore, under such a coercive framework, the scope for judicial interpretation may automatically be limited through the coercive application of the law irrespective of the individual circumstances of the case. This poses the question of whether true justice may be served through rigid adherence to rules laid down by the sovereign and through social norms. Such views on jurisprudence tend to conform to a natural law approach, where the law is also tied up with morality. The idea of law being “natural” implies that it is derived from the basis of morality. The foundation of natural law is that a putative norm cannot be considered legally valid, unless and until it is able to pass the moral threshold. The utilitarian position on liberty is based upon the proposition that the value of individual freedom is generally associated with that of greater good for society as a whole.5 Therefore, as stated by Feldman, “once something has been identified as a good, it must prima facie be made available to all without differentiating with reference to preferred outcomes.6 Fuller highlights this aspect of “good” in attributing an internal system of rules in framing the law. He contends that framing of rules of law is inevitably linked to morality, since (a) it is geared towards achieving the end result of social order and (b) it achieves this social order through a respect for individual autonomy, thus a failure to introduce principles conditioned by morality could produce a bad system of law, one that may be disputed as being law at all.7 Most of the principles Fuller advocates are based upon the idea of moral fairness and internal morality. Lord Denning has highlighted the importance of moral fairness in decision making in his discussion of the case of Somerset v Stewart8 which concerned the case of a black slave who was brought to England by his English master, and was chained in irons on board an outgoing ship when he refused to return to Africa. In rendering a decision on the case, Lord Mansfield stated: “Every man who comes into England is entitled to the protection of English law, whatever oppression he may heretofore have suffered and whatever may be the color of his skin……Let the black go free.”9 The nature of law has been such that there has always been an attempt by judicial authorities to exercise the limitations of their power in order to ensure that fundamental rights and freedoms of individuals are preserved. Dworkin distinguishes between the coercive rules that constitute the law and the principles that are used in the application of the law as follows: “Rules are applicable in an all or nothing fashion…..either the rule is valid in which case the answer it supplies must be accepted or it is not….but this is not the way principles operate…..[a principle] states a reason that argues in one direction but does not necessitate a particular decision.”10 The Positivist Approach: H.L.A.Hart fiercely opposes the predictive interpretation of law based upon its coercive aspect on the grounds that such interpretation “obscures the fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow.... but are also a reason or justification for such reaction and for applying the sanctions.”11 He points out that the law is the vehicle that imbues individuals with the power to enter into contracts, marriages or wills and allows this to be executed in accordance with the specific requirements of the parties involved. Hart states: "Such laws do not impose duties or obligations. Instead, they provide individuals with facilities for realising their wishes, by conferring legal powers upon them to create, by certain specified procedures and subject to certain conditions, structures of rights and duties within the coercive of framework of law. The power thus conferred on individuals to mould their legal relations with others by contracts, wills, marriages etc, is one of the great contributions of law to social life; and it is a feature of law obscured by representing all law as a matter of orders backed by threats”12. Raz emphasizes the social learning aspect of conforming to rules, applying a test of behavioral guidance to determine that a person could have come to accept the rules without actually deciding to do so, or questioning the original justification for the rule itself.13 Therefore, the blind application of a rule in an all-or-nothing coercive manner may not necessarily serve the cause of justice or reflect the social context within which the rule of law is to operate. According to Hart, who advocates a positivist approach to the nature of law rather than a natural law approach, a full blown system of law must be equipped with more than mere rules, since these are only “concerned with the actions that individuals must or must not do”, while secondary meta rules that have the primary rules as their subject matter help to “specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.”7 Thus, while primary rules spell out the obligations of the individual, secondary rules help courts to resolve disputes over the application and interpretation of those primary rules and may therefore be classified as rules of recognition. Such a view of the nature of law also most importantly, separates morality from law and the implications of such a distinction are discussed later in this work. Parliamentary Sovereignty and Constitutionality: Theories of jurisprudence deal with the semantic content in the concept of law, or they may be interpretative theories. One of the most important aspects of law in the U.K. is the supremacy of Parliamentary sovereignty. Law making in the U.K. and the determination of its constituent elements, punitive measures and the scope of legislation, etc fall within the realm of power accorded to Parliament. A.V. Dicey has summed up this law making power of Parliament as follows: (a) Parliament can pass laws on any subject (b) Parliament also has the power to regulate activities by anyone, anywhere (c) Parliament cannot bind its successors by insisting that a particular form and manner of legislation must be adhered to (d) Laws that are laid down by Parliament cannot be challenged by the courts.14 Applying this view of lawmaking, since laws passed by Parliament cannot be challenged by the Courts, the interpretative function of jurisprudence is limited and the focus of Parliamentary sovereignty would result in the applicability of theories dealing with the semantic content in the concept of law. The nature of law would then be limited to applying the semantic content of law and restrict the power of the Courts to apply the law in a flexible manner based upon the individual circumstances of a particular case. As Lord Diplock clarified in the case of CCSU v Minister for Civil Service, "….the ultimate source of decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute; but in the absence of any statute regulating the subject matter of the decision the source of any decision-making power may still be the common law itself, ie that part of the common law that is given by lawyers the label of "the prerogative.”15 But in some instances, the need to ensure morality in decision making and the upholding of human rights may necessitate a more interpretative approach in law and a more active judicial role in application of the law, with scope for modification when necessary. Lord Denning articulated this sentiment as follows: “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.”16 A rather different view is offered by Sir William Blackstone, who discusses the issue of separation of power of the legislative and judicial arms of Government. This is one of the issues raised by Lord Denning’s view of the nature of law as being one where a more activist judicial role is desirable, whereas the separation of powers and limitation of judicial powers is intended to ensure that the law making function is a balanced one. Sir William Blackstone, in commenting on this issue has stated as follows: “In the distinct and separate existence of the judicial functions in a peculiar body of men, nominated indeed, but not removable at pleasure, by the Crown, consists our main preservation of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some way separated as well from the legislative as from the executive power. Were such functions joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would not be based by any fundamental principles of law: which though legislators might depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative ... Nothing is more to be avoided, in a free constitution, than uniting the province of a judge with that of a minister of State.”17 In the case of Pepper v Hart18, Lord Browne Wilkinson’s judgment referred to the need to consider the issue of constitutionality vis a vis Parliamentary Sovereignty. He stated that while the legislative powers of Parliament are undisputed, nevertheless in the interpretation of the laws, it becomes necessary to consider not merely the written word itself, but the spirit of the law. He referred to legislation which is “ambiguous or obscure” and where implementing it according to the “literal meaning” would constitute an “absurdity”, in which case it becomes necessary for the judicial arm of Government to take into account “legislative intention lying behind the ambiguous or obscure words.”19 Therefore this moots an approach whereby Parliamentary sovereignty cannot be defined as a “blind obedience to statutory words” but rather as giving “effect to legislative intent”, whereby the responsibility lies with the Courts to protect citizens from the mistakes of the legislators20. According to Lord Hoffman’s statements in the case of R v Secretary for the Home Department, ex parte Simms, the issue of Parliamentary sovereignty rises in conflict to the principles of legality and the need to uphold the fundamental rights of citizens, which is the basic purpose behind the framing of laws by any Government. He states that “fundamental rights cannot be overridden by general or ambiguous words”21 Therefore, there may arise instances where there is a need to interpret the law differently. It may be necessary to avoid a literal interpretation of the law according to written statues and rely upon interpretation of the law in accordance with the intent of the legislators in framing the law. Since the supreme objective of the law of the land is to protect the rights of its citizens, laws that are enforced literally but impact negatively upon human rights cannot be said to follow the original intent of the legislators in framing the law. Sir John Laws has discussed the relevance of constitutional guarantees and whether a special status can be given to them in the law of England22. He defines a constitutional guarantee as a legal measure that has two major characteristics: (a) it protects basic or fundamental individual rights from intrusion by the State and (b) it is entrenched, in that it cannot be easily changed or abrogated by the measures that are used to change ordinary laws. Some rights that would fall under the category of constitutional guarantees for example, include the presumption of innocence in criminal law, or the rights to freedom of speech and expression. Sir John Laws also points out that Parliamentary Sovereignty makes it difficult to entrench such fundamental rights as constitutional guarantees and diminishes the power of Courts. In the context of Parliamentary Sovereignty, where government power reduces the authority and control of the Courts, it is worth noting that some jurists have also questioned the power exercised by non governmental entities. Lord Denning has examined the issue of reduced power of the Courts in the context of group power and how it can be controlled by the Courts. In referring to group power, he meant the power of associations, trade unions and companies and the need for control of such powers by the Courts, which he has described as one of the important questions affecting society. In this context, he has stated that: "….none of the old machinery of certiorari, mandamus or prohibition is available against these groups because they are not public authorities". 23 Lord Justice Woolf, in discussing the administrative review procedure that is available to appeal against the decisions of public bodies, has questioned whether : "the type of review which takes place into administrative action should as at present be limited to public bodies?"24 The passage of the Human Rights Act of 1998 has to some extent, made provision for constitutional guarantees. While it preserves Parliamentary sovereignty by not allowing Courts to strike down statutes, it permits them to make a declaration of incompatibility25 of legislation, which in turn triggers Parliament to amend the legislation which may be incompatible with the goal of preservation of fundamental individual rights. Sir John Laws also points out that the problem of entrenchment of constitutional guarantees does not pose a problem in countries such as the United States, where there is a written Constitution which must be honored by law making bodies26. He is of the view however, that Britain’s lack of a written, codified Constitution has in fact, worked in its favor, because it has enabled a flexible, evolutive approach to legal problems and dilemmas. As Sir John Laws also points out, codification of constitutional guarantees can at best, be worded in broad terms and will therefore still leave considerable room for interpretation by judicial authorities27. Britain’s system of Parliamentary Sovereignty has allowed for changes in laws in accordance with the needs and requirements prevailing at the time, so that it more effectively serves the needs of the people by not being bound to a written document. Parliamentary Sovereignty can co-exist with constitutional guarantees. Sir John Laws has clearly stated that constitutional rights, such as freedom of speech and the presumption of innocence cannot be left to the mercy of the prevailing winds at a particular time. He suggests that such rights be enshrined as constitutional statues, which cannot be repealed in the manner that ordinary statutes can. Separation of law and morality: The important aspect that distinguishes Hart’s approach from natural law and morality as put forth by Bentham and Austin is the fact that the law and morality are viewed as strictly separate. According to Klaus F, the definition of law must be completely free from moral notions28, while Hart questions whether law should be conceptualized as coercive mandates and moral commands and concludes that there may be no moral justification mandated through legal rights and duties29. But he does not completely dismiss the moral aspect, he admits that in certain cases, a determination of the validity of a legal rule may involve its compatibility with moral values.30 For example, in the case of Riggs v Palmer31 a defendant who killed his father due to the fear that he might change his will and disinherit him, was considered to have committed an immoral act that could not be condoned although from a legal perspective, the defendant had every right to inherit the property. Dworkin states that the Court decided this case on the basis of “the principle that no man may profit from his own wrong as a background standard against which to read the statute of wills.”32 In effect, such judicial interpretation impacts upon existing law. In the case of Riggs33 the judges have performed a function of not merely applying the law, but indicating change in the law to support justice. Similarly, in the landmark case of Roe v Wade13, the existing law on a woman’s right to an abortion was changed and the factor impelling the decision of the judges in this context was the secondary rules that were the result of the social context governing the individual case. Another such case that may be cited is that of Hedley Byrne14 where the judges expanded the scope of contract law, circumventing the Doctrine of Privity of contract, to include and allow third party action under tort. Hart describes those laws that impose duties on individuals as the primary rules of obligation, where the function of judicial interpretation is limited. However, when the primary rules are not sufficiently clear or comprehensible, then there is likely to be uncertainty in determining duties and obligations under the law, which will necessitate the application of secondary meta rules that he characterizes as the rules of recognition. In some instances, where primary rules are inadequate to satisfy the requirements of the law, it may be necessary for judges to engage in creative judicial interpretation to ensure justice, which in some cases may also mandate the formulation of new laws. Hart’s Rule of recognition thus allows for judicial interpretation of the law which may even extend to the evolving of new statues where necessary. The application of the law to an individual case could form the precedent for a general rule of law that will be applied in the future, as has been the case with Roe34 and Hedley Byrne35. As explained by Raz, “Many legal systems recognize that both rules and principles can be made into law or lose their status as law through precedent.”36 This is precisely the aspect that leads to the judicial law-making function, since existing laws can be over-ridden or new laws mooted through the precedent established by judicial decisions. Since there is room for interpretation in some cases like Riggs37 where the decision of the Court to eschew promulgated law and set a new precedent may be seen to be a function of its discretion in interpretation, this places judges more in the capacity of forces instigating changes in law. This is so even in a country like the UK where according to Dicey, the judicial role is to protect Parliamentary sovereignty from any encroachment by the executive and in doing so, fulfill the function that Parliament has assigned to judicial authorities.38 As Lord Browne Wilkinson has pointed out, British judges have already used their judicial power in several cases to protect what they consider as fundamental rights indicating their willingness to subject government initiatives impacting upon fundamental rights to “the most anxious scrutiny”39 Therefore, the significant impact of judicial decisions in cases such as Hedley40 are important in establishing the law-making role that is partly imbued upon judicial authorities. The views of Ronald Dworkin: Judicial activity sometimes requires an application of principles that may extend beyond those strictly promulgated under the law and such binding principles are derived from their contributions in terms of providing the best moral justification for society’s legal practices and existing rules41. Dworkin however, rejects Hart’s concept of judicial discretion as being inclusive of the facility of formulating new laws42, but views it as being restricted to the determination of legal principles in accordance with the existing laws. Dworkin contests the rule of recognition and states that “if we treat principles as law we must reject the positivists first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule.”43 He also rejects the social rules basis of Hart’s rule of recognition and states: “…two people whose rules differ ... cannot be appealing to the same social rule, and at least one of them cannot be appealing to any social rule at all."44 In pointing out the conflicts that arise in an application of social rules to an interpolation of national and international laws, Dworkin points out that Hart’s qualification about his rule of recognition being flexible at some points, in fact undermines his theory. “ If judges are in fact divided about what they must do if a subsequent Parliament tries to repeal an entrenched rule, then it is not uncertain whether any social rule [of recognition] governs that decision; on the contrary, it is certain that none does.45 Thus Dworkin does not fully agree with the positivist approach to the nature of law, which separates law and morality. He does not however, equate morally unjust law with bad law, although he does highlight the value of the moral dimension to law when he states: “According to law as integrity, 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.”46 Dworkin also advances the proposition that in deciding difficult cases for which no effective legislation is found to exist, judges may invoke legal principles that are derived from a broad based framework of principles, which must also be considered to be equivalent to law although they may suggest rather than force a particular outcome.47 In the application of principles, judges may often use a moral basis in law which is conditioned by universal beliefs of fairness and equity. The demands of human rights must take precedence over social goals and in this context, Dworkin’s view is that “rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole.”48 Hence, Dworkin uses this as the basis for his argument that where the issue of claims under human rights arises, then the rights of the minorities to be protected from discriminatory treatment would trump over all considerations of advantages to the majority that are acquired through the discriminatory treatment49. The concept of trumps therefore overrides utilitarian concepts, because trumps express the fundamental basis of equality upon which the doctrine of human rights rests, and such equality must take precedence over social and political considerations. Such protection for individuals against discrimination has “trumped” in several cases before the European Courts, where issues such as homosexuality and individual freedom are involved.50 The validity of human rights will however depend upon the legal codification of these rights, since the pure ascribing of a moral basis cannot be effective in law, because morality is too broad based and law requires the development of specific norms. Dworkin has also advanced a third theory of law, that comprises two basic claims (a) in the case of legal systems such as the United States, judges lack discretion in lawmaking where they are confronted with difficult cases and (b) where such law systems are concerned, the content of the law is such that moral norms are highlighted.51 But as Himma argues, these two fundamental claims in effect, contradict each other. He argues that the highest court which has jurisdiction over a particular issue of law also has the authority to determine what the content of the law will be on that particular issue52. Thus, the nature of law and law making may of necessity, be evolving into one which represents a combined approach between natural law and the purely rational positivist approach. It is the moral requirement for upholding fairness and preservation of individual freedoms which forms the foundation of law, while rational principles guide its execution. Conclusions: The two basic approaches to the nature of law have been premised on the natural law approach and the positivist approach. While the former stresses morality as an integral component of the law, the positivist approach adopts a rational approach, separating law and morality and allowing flexibility of judicial interpretation within the framework of social rules. While the separation of powers and the existing doctrine of parliamentary Sovereignty has the objective of restricting judicial function to interpreting the existing law, judicial activism has in fact resulted in some instances where the precedents set by judicial authorities have become the law through continued application via established legal precedent. While in the UK, the law making function of the judiciary is not so pronounced due to Parliamentary Sovereignty, in countries such as the United States, precedents set by the Supreme Court have undoubtedly formed the body of future law. The underlying basis for the most radical judicial decisions, whether in England, the United States or elsewhere in the world, is the moral requirement of fairness and protection of individual rights and freedoms. But as Dworkin has pointed out, purely ascribing a moral basis into the nature of law will fail to be effective because morality is too broad based and requires the development of specific norms. This is where the positivist approach is more useful because it allows for a rational approach in considering the nature of law. As discussed above, the views of jurists on the nature of law is wide and varied, with some advocating a more activist role for the judiciary while others support the existing principles upon which the law is founded, i.e, Parliamentary sovereignty in England and the preservation of the separation of powers by restricting the power of the judiciary to change or amend existing laws. What is indisputable however, is that there is an increasing level of importance that is being accorded to the preservation of individual freedoms and rights and in this context, the judicial role is becoming increasingly important. Applying a purely rational approach to the law as mandated under the positivist approach does take into account the social context and the need to make amendments in the law in accordance with the changing social context. But it does not accord enough importance to the moral principles that must form the framework of the law, if it is to constitute good law that has the objective of ensuring equity, fairness and justice. A purely moral perspective is also too broad based and differing moral standards may cause difficulty in applying a uniform approach, which is unacceptable from a legal perspective. Therefore, a combined approach appears desirable and the increasingly activist judicial role that is evident both in the UK, USA and other countries also reflects the heightened importance that is being accorded to tailoring the law to promote individual freedoms and rights. The view of John Laws as detailed earlier, is therefore very relevant in arriving at a conclusion on the nature of law. Laws must retain some measure of permanency if they are to be effective in the long run, but at the same time, they must also have a measure of flexibility that will enable the changing needs of society to be met. As Laws has pointed out, there are certain fundamental rights and freedoms which must be ensured at all times and these cannot be subject to the winds of change that blow through society. Examples of such rights are the presumption of innocence in criminal law, the right to freedom of speech and expression, the right to privacy and protection from the encroachment of the State. Such rights constitute constitutional guarantees which must be fixed and stable in the long run, recognition of the moral roots within which law is founded. On the other hand, there are other categories of laws and rights, whose relevance may wear off with the passage of time as conditions in society change and give rise to circumstances requiring the passage of new laws. One such example is the protection of rights of homosexuals, which is a new development that the law has been required to accommodate. Earlier laws, such as male only primogeniture in succession law for example, may no longer be relevant in the present day. Hence, the nature of law is an evolving entity, emerging on the basis of both morality and the changing social context. But certain fundamental rights, enshrined in constitutional guarantees need to be more fixed, stable and permanent, to ensure that it constitutes good law, because unjust law is not law, as St. Augustine has so appropriately stated. Bibliography * Austin, John, 1977. “Lectures on jurisprudence and the philosophy of positive law”, MI: Scholarly Press. * Bentham, Jeremy, 1782. “Of Laws in general”, HLA Hart edition, London: Athlone Press, 1970. * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press * Dworkin, Ronald, 1986. “Law’s Empire”, London: Fontana * Dworkin, Ronald, 1984. “Rights as Trumps”, In Jeremy Waldron ed. “Theories of Rights”, Oxford: Oxford University Press. * Dworkin, Ronald, 1983. “The Third theory of law: Ronald Dworkin and contemporary jurisprudence”, (edn: Marshall Cohen), London: Duckworth * Dworkin, Ronald, 1977. “Taking Rights Seriously”, Cambridge: Harvard University Press * Feldman, David, 2000. “Civil Liberties and Human Rights in England and Wales”, 2nd edn. Oxford: Oxford University Press * Fuller, Lon L, 1964 . “The Morality of Law”, New Haven: Yale University Press * Hart, H.L.A., 1994. “The concept of law”, 2nd edn. Oxford: Clarendon Press. * Himma, Kenneth Einar, 2003. “Trouble in law’s empire: Rethinking Dworkin’s third theory of law”, Oxford Journal of Legal Studies, 23(3) at pp 345-377 * Kelsen, Hans, 1945. “General Theory of Law and State”, Cambridge: Harvard University Press. * Klaus, F 1996. “Farewell to legal Positivism: The separation thesis unraveling”, IN George, Robert P. “The autonomy of law: Essays on legal Positivism”, Oxford: Clarendon Press * Laws, John, 2008. “Constitutional guarantees”, Statute Law Review, 29 (1). * Lord Denning, 1979. “The Discipline of Law”, Butterworths at p 147-148 * Lord Denning, 1979. “The due process of law”, Oxford University Press * Lord Denning MR, 1982. “What Next in the Law”, Butterworths. * Lord Justice Woolf, 1986. "Public Law-Private Law: Why the Divide? A Personal View" Public Law, 220 * Loveland: “Constitutional Law , Administrative law and Human rights (a critical introduction ) third edition, Butterworths * Mill, J.S., 1962. “On liberty”, In M Warnock (edn), “Utilitarianism” London: Fontana * Raz, J, 1975. “Practical reasons and Norms”, Princeton University Press * Raz, Joseph, 1972. “Legal Principles and the limits of law”, 81, Yale Law Review, 823 * Sir William Blackstone, 1869. “Commentaries on the Laws of England”, (Herbert Sloan and Edward Hadley (eds) Cases cited: * CCSU v Minister for Civil Service (1984) 3 WLR 1174 * Karner v Austria (2003) 2 FLR 623 [Online] Available at: http://www.coe.int/t/e/legal_affairs/legal_co-operation/Family_law_and_children%27s_rights/ Judgments/karner%20-%2040016jv.chb1%2024072003e.asp#TopOfPage * Hedley Byrne v Heller (1963) 2 All ER 575. * Pepper v Hart (1993) AC 593 (1993) 1 ALL ER 42, HL. * R v Secretary of State for the Home Department ex parte Bugdaycay (1987) AC 514 at 531 * Riggs v Palmer (1889) 115 NY 506 * Roe v Wade(1973) 410 US 113 * R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 * Somerset v Stewart (1772) 20 S Tr 1 Read More