Whether or not the right balance between preference, obligation and feasibility is being struck by judges - Essay Example

Judges decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do. Whether or not the right balance between preference, obligation and feasibility is being struck by judges is an ongoing and crucial question in the legal system today." The basic rule of statutory construction is when the law is clear and unambiguous, the courts are duty bound to apply the law. In cases where the law is ambiguous and does not fall squarely on a particular case, the court has to apply the so-called judicial law-making. But having applied the law in a particular case, it becomes a precedent and binds the lower courts and future cases of similar nature. However, there are instances where the courts applied the doctrine of judicial precedent in different manners, through preference, obligation and feasibility. Although previously, it was not recognised that judges make laws, the modern view is that they make laws. This view is supported by Lord Radcliffe (Doctrine of Precedent Online). The judge continually applies the law to new situations and cases and in the process creating new laws. However, there are instances when courts decline to change the law on the ground that it is better for the Parliament to remake the law. In the case of R v Clegg, it was suggested that fairness would be achieved by charging Clegg of manslaughter instead of murder because of his wrong reaction but without evil motive (National Decisions 1967). And that a new qualified defence be available to a soldier or police who used excessive force as a defence or in the prevention of a crime. The reduction of murder to manslaughter should better be left for the Parliament to change because that issue is part of a wider issue of maintaining a mandatory life sentence for murder. (Doctrine of Precedent Online). In the case of C v DPP (1995), it was put in issue whether to abolish the presumption that a child of 10 to 14 years of age is incapable to commit a crime. The House did not abolish it but called upon the Parliament to review it. Lord Lowry provided guidelines for judicial law-making, as follows: (a) not imposing a remedy where the solution to a problem is doubtful; b) be cautious of making changes if Parliament itself refused to deal with a known problem or has legislated but left the problem untouched; (c) to deal with purely legal problems than disputed matters of social policy; (d) fundamental legal doctrines should not lightly be set aside; and (e) not change the law unless they can achieve finality and certainty (Doctrine of Precedent Online). Tur (2002) focused his discussion on prospective overruling and the weaker prospective lawmaking technique of ‘not following’, a well-established feature of common law. He mentioned the observation of Lord Nichols that prospective overruling is not a recognized principle in English law yet. Thus, the effect of overruling a case would be retrospective. This would give a guarantor, for instance, more extensive liabilities than when the guarantee was signed. Tur believes that overruling is unfair. For Lord Devlin, it is tantamount to crossing the Rubicon between the judicial and legislative powers. Whether judicial role is legitimately creative (legislative) or exclusively declaratory (adjudicative) still remain a controversy between theorists and practitioners. But if rules cannot extensively state a law, some theorists believe that there is more space for creativity in exclusively rules-based conception than conceptions based on natural or socially constructed rights which are constrains to judicial discretion. The rights-based approach presupposes timeless rights which provide one or more right answer (strong version). While in social rights which change over time, a change in the underlying system of rights may validate judicial changes in the law or development of the law (weaker version). This offers a venue to exercise strong discretion. While a husband cannot be convicted of rape according to common law rule from the time of Hale, the House of Lords declared in 1991 that there was no such rule. The right of the wife to choose or refuse sexual intercourse is preferred over the right of the husband to intercourse without consent. This reflects the modern conception of marriage as a partnership with equality. According to Professor Finnis, opponents of the declaratory theory of common law reject the normative claim (Tur 2002). Tur’s own normative claim requires a judge to do justice to the extent of departing from established legal rules and standards. He believes that any theory of law entails a theory of adjudication, otherwise, it would be incomplete. There is a question on whether the effect of invalidation of enactment applies retroactively from the time of the ruling (ex tunc) or prospectively from the time of the ruling (ex nunc). Inclination is towards ex tunc but it tends to legalise an illegality. Be that as it may, there is a reasonable reliance on the validity of a decision or enactment before being declared invalid. As Shiemann LJ put it, during its validity, money is spent, property is sold and a person imprisoned on the basis of the law. There is no feasible alternative to the retrospective effect of the new rule, except prospective overruling. Many believe though, that prospective overruling has no place in the English legal system. But the argument of the classical version of declaratory theory against prospective overruling is no longer recognised. Overruling, whether applied prospectively or retrospectively is legislative. But to serve the end of justice, it may be expressly declared to apply prospectively. The Divisional Court, although empowered to overrule its past decisions, did not do so in the cases of Naughton and ex parte Evans. It simply did not follow. Not following may only have a prospective effect while overruling is both prospective and retrospective. The application of discretion by judges is inherent in the application and interpretation of law to cases. In the positivism theory to which discretion thesis belongs, cases which do not fall clearly under a valid rule, referred to as hard cases, judges decide on cases by using judicial discretion. A judge has to reach beyond the law for some standard to guide him in creating a new law in place of the old one. (Himma 1999). Hard cases cannot be decided by merely applying the law, thus, a judge has to go beyond the existing law to make new law in the exercise of discretion. A judge is authorised to fill the gaps in the law by the exercise of a limited law-creating discretion. Dworkin cited three instances wherein a judge exercises discretion, a) when a judge must use judgement in applying the relevant standard because it cannot be applied mechanically; b) when the decision of a judge is final and not subject to review or reversal by higher political authority; and c) when the decision of the judge is not constrained by any binding standards (Himma 1999). He believes that the positivist is more inclined to the third of discretion. This view is rejected by Hart (a supporter of the pedigree thesis of positivism) in the sense that the power of the judge cannot introduce large-scale reform, but can only be exercised to particular cases and thus, subject to many substantive constraints. He said that in unregulated cases, the judge both makes new law and applies the established law which both confers and constrains his law-making powers. This view is supported by Raz in saying that unregulated disputes are partly regulated, hence, the court has to apply the existing law as well as to make a new law. But since there is a gap in the law in an unregulated dispute which fails to provide a solution, the court can make law without changing existing law. It makes law by filling in the gaps. Some positivists suggested that since one of the functions of the law is to settle disputes, a policy of dismissal might be the fair solution to cases not falling under an existing law. Dworkin, however, has the opinion that for a judge to decide an unregulated case by creating a new law would amount to ex post facto law (Himma 1999). Dissent in judgements is currently acceptable in several jurisdictions although frowned upon before either because it discourages unanimity, weakens the court or is an attack to precedents. However, majoritarianism supplanted unanimity during the 16th century. Eyre CJ said in Grindley v Barker that in a body, the men comprising it do not think alike and thus, the minority can govern the majority or vice versa according to the strengths of opinions, tempers or interests of the time (Alder 2000). For Judge Brennan, dissent is an essential safeguard to democracy and that uncertainty in the law is a sign of a healthy society. In that sense, particular policies or values are not privileged. In seeking solutions for particular disputes, the possibility of change must be left open. Dissent, in fact, is a tool to offset democratic deficit in the common law. The existence of incommensurable values and interests, constantly competing with each other, deserve respect. John Gray, following Berlin, referred to the diversity of values objective pluralism while Joseph Raz called it constitutive incommensurables (Alder 2000). With no scale to balance the competing values and interests, accommodation of incommensurables is tentative. For Pound, to compromise conflicting claims and wants would compel lawmakers and judges to satisfy most with least sacrifice. In White v Chief Constable of the South Yorkshire Police, incommensurables were combined to produce an agreement to the outcome. In this case, policemen claim entitlement to recover for psychological injury. Using utilitarian and distributive justice, the majority disfavour recovery by limiting liability beyond physical injury (Lord Steyn) and by concentrating on distributive justice between the police and relatives of those killed but cannot recover (Lord Hoffman). Lord Browne-Wilkinson accepted both views resulting to the combining of two incommensurables by the majority. The third incommensurable, however, that of corrective justice requiring compensation for a wrong, cannot be combined. Many dissents in the final appellate courts concern incommensurables wherein, although the law is clear technically, issues of justice or policy arise. A dissent in the Court of Appeal is a signal for the higher court of a difficult issue. Four kinds of incommensurable disagreements arise in the appellate courts: a) disagreement about substantive ethical or political values, b) disagreement relating to institutional constraints of the judicial function (particularly on the distinction between formal and substantive reasoning in accord to textual consistency and desirability of substantive outcomes), c) disagreement which cuts across the other two mentioned, and relates to the search for general a priori principles (following Lord Mansfield who discouraged dissents) and the more pragmatic and consequentialist process (following Coke and Hale), and d) disagreement in subjective weighting of consequences or inferences from fact (which really favours restraint in the use of dissents). Under the first, one aspect concerns deontological values embodied in individual rights or communitarian values such as individual right to privacy alleged to conflict with public interest. Majority of the House of Lords held that indulging in voluntary acts of sado-masochism in private was guilty of an offence while the minority, utilizing qualified deontology, held that individual freedom be valued for its own sake in that the conduct could be an offence only if it led to a demonstrable public harm. Both positions are irreconcilable. Similarly, corrective justice and distributive justice are irreconcilable in White v Chief Constable case. An example of disagreement in formal and substantive reasoning is the case of Fitzpatrick v Sterling Housing Association wherein a homosexual partner was regarded as a family member for purposes of succession to tenancy right using the inherent purpose of the Rent Act 1977 to have a stable, loving and caring relationship as if married (Lord Slynn). Lord Nicholls and Lord Clyde lent support with their own reasons. The minority (Lords Hutton and Hobhouse), adopted a stricter definition based on blood relationship or a de facto relationship as in marriage or adoption. Formalistic reasons may be used to reinforce substantive aspect or the other way around, thus distinguishing them is quite difficult. In ex parte Pinochet, the majority, putting emphasis on corrective justice held that Senator Pinochet could be extradited to Spain only for offences committed after 29 September 1988 (effectivity of Criminal Justice Act) which gave effect to the Torture Convention. Lord Millett, relying on the principles of international law said that extradition is possible regardless of the date and place of commission of the offence. While Lord Goff, adopting a formalistic and pragmatic analysis, in reference to international law, said that Pinochet could not be extradited. Under the third kind of disagreement, R v Immigration Appeal Tribunal, ex parte Shah divided the House on whether the Pakistani women accused of adultery were persecuted as members of a particular social group within the meaning of the Convention Relating to the Status of Refugees. The majority held that the women were legitimate refugees and that the Convention espoused against the evil of discrimination. The dissent, applying the relativist approach to causation said that the persecution was not due to discrimination but for violating the social norm against adultery. The women were not a social group but only defined as such due to their persecution. The persecution was not because they were women but because of non-conformance to norms. The case of Tinsley v Milligan, an example of the fourth kind of disagreement, refers to the application of the principle ex turpe causa non oritur actio resulting to a trust. The defendant contributed in the purchase of a house under Tinsley’s name so that Milligan can claim social security benefit. They lived together as lovers. One view espoused supported that Tinsley is entitled to possession because fraud tainted the arrangement and could not create a trust. Another view held that the principle cannot apply because reliance to the fraud to claim equitable interest is absent in the case. The third view relied on the concept of public conscience which was unanimously rejected in deference to judicial discretion. As already mentioned, dissent serves as a warning where incommensurable values cannot be combined. Publication of dissent has been supported because it provides a way to identify and protect incommensurable interests and it serves as a quality control and safety valve (Alder 2000). The arguments for publication are as follows: a) it ensure equal treatment of members, reinforces respect, and supports majority rule as against unanimity, b) it strengthens public confidence in the judiciary by helping to sharpen the reasoning of the majority, it ensures fully considered and independent decisions, and reinforces accountability of judges, c) it embodies the traditional values of freedom of expression and conscience as of intrinsic value, d) it exposes the weakness in the law in that the dissent might become the majority in the future or be adopted by the legislature, and e) it helps to focus and clarify understanding of issues (Alder 2000). Arguments against publication are as follows: a) they take a different view of the nature of authority, and b) in the context of quality, they concentrate upon empirical disadvantages of dissents set against the advantages favoured by the proponents of dissent (Alder 2000). They tend to ignore democratic concerns relating to accountability and freedom of expression. Dissent creates uncertainty and weakens the doctrine of stare decisis. It has little impact and wastes resources and only gives a judge an opportunity for self-publicity at public expense. It confuses the majority speeches. And in relation to international courts, secrecy helps to preserve judicial independence by protecting individuals against political interference. Arguments against dissent exist strongly especially where confidence in the political settlement or in the judicial process has been relatively low or uncertain. Be that as it may, it was suggested that judges should apply self-restraint and use dissent only for ‘really worthy cause.’ Application of preference by a judge is particularly used by Lord Denning MR in the case of Conway v Rimmer (1968) wherein he said that the observations of the House of Lords in Duncan v Cammel do not bind the Court of Appeals and that Lord Gardiner LCs statement changed the doctrine of precedent (The Denning Story n.d.). The House of Lords reconsidered the Duncan case and overruled it although it was made clear that the said case binds the Court of Appeal all along. In the case of Broome v Cassel (1971), again, the Court of Appeals refused to subscribe to the House of Lords decision in Rookes v Barnard (1964) being wrong on the grounds that it was decided per incuriam and in ignorance of previous decisions of the House. The Court of Appeal was castigated by Lord Hailsham for disloyalty and not following the decision of the higher tiers. He also overturned the Havana case (1961) which ruled damages could only be awarded in sterling in Schorsch Meier GmbH v Hennin (1975) by allowing payment of foreign currency as damages in a breach of contract, which is the currency of the contract. Another assertion of Lord Denning in Gallie v Lee (1969) was that the Court of Appeal is not bound by its prior decisions. Being a self-imposed limitation, the court can in turn remove the limitation (The Denning Story n.d.). And since the House of Lords have done it, the Court of Appeal can likewise do. Other judges, however, were not in agreement with him. However, in Tiverton Estates Ltd v Wearwell Ltd (1975), although still believing in his position in the Gallie case, he added that if one division of the Court of Appeal believe that the other division is wrong and would not subscribe to the latter’s division, there would be inconsistency and confusion. Thus, he deferred to the House of Lords as the ultimate jurisdiction in reviewing cases of the Court of Appeal. But again, in Davis v Johnson (1979) involving the Matrimonial Act of 1976, Lord Denning did not follow the ruling in Cantliff v Jenkins (1978) and B v B (1979) that the Act does not protect a female cohabitee where she was a joint tenant or owner with the other party. Cantliff was overturned on the ground that it was wrong. The House of Lords might not be able to correct the error and thus perpetuate it. It is proper for Lord Denning to depart from a previous wrong decision and apply the guidelines adopted by the House of Lords in 1966. Cantliff and the B v B cases were overturned by the House Of Lords. However, Lord Diplock said that even though the Court of Appeal would like to be freed from the shackles of stare decisis, the doctrine laid down in Young v. Bristol Aeroplane Co. Ltd on stare decisis still applies to it (The Denning Story n.d.). The case of Pepper v Hart (1993) is descriptive of feasibility as an approach to judicial precedent. In a gist, the case deals on the resort by the court to statements uttered by Ministers or sponsors of the Bill during sessions in Parliament when the primary legislation is ambiguous. Article 9 of the Bill of Rights prohibits the questioning of speeches and debates in Parliament by any court or in any place outside of the Parliament (House of Commons Library 2005). Statements thus uttered cannot be used as guide in interpreting ambiguous provisions in the statute. The ambiguous provision in the Pepper case is “the cash equivalent of the benefit” on taxation referring to the tax payable by Mr. Hart, a schoolmaster at a fee-paying school which allows staff to enroll their sons at a lower fee, provided there were available slots. In Mr. Hart’s case, there would be a negligible additional cost to the employer because only empty spaces were filled. However, the Inland Revenue taxed a proportion of the cost of providing the service relying on the words of the Act. The House of Lords, in its judicial capacity, decided that clear statements made in Parliament during enactments may be used as guide in interpreting ambiguous provisions and does not amount to questioning the proceeding but would in effect give effect to the statements and proceedings therein. Such position is supported by Lord Browne-Wilkinson. The Hansard, becoming an online resource since 1993, still remains inadmissible in statutory interpretation except within the conditions laid out in Lord Browne-Wilkinson’s ruling. Before the Pepper case, using Hansard in that way would have been regarded as a breach of Parliamentary privilege. The introduction in recent years of Explanatory Notes to Bills, which are written and revised as legislation passes through the House, has negated some of the need to examine individual statements. In his ruling on R (Westminster City Council) v National Asylum Support Service, Lord Steyn made it clear that he considered Explanatory Notes admissible, even when the statute was unambiguous. The connection of Explanatory Notes with the proposed legislation is closer than pre-parliamentary aids which in principle are already treated as admissible. If in the Explanatory Notes, there is a clear assurance by the executive to the Parliament about the meaning of a clause, that assurance may be admitted against the executive in proceedings when the executive places a different contention before the court (House of Commons Library 2005). The courts’ role in tempering of laws can be seen in its interpretation of parliament’s laws in aid to the protection of basic freedom (Bonner, Fenwick and Harris-Short 2003). In layman’s term, tempering is the adjustment to the needs of the situation by a counter-balancing or to dispose of properly. Generally, the Parliament should only be the supreme source of law. But the passage of the European Convention on Human Rights (ECHR) requires that UK’s legislations do not breach its obligations under it. In case of ambiguous legislations where words can be interpreted in favor of compliance with ECHR and another non-compliance, the court should adopt the former. But when the language is clear, it had to be applied by the courts although it is contrary to the Convention. Although the ECHR is a proper resource to shape the common law, the courts, however, cannot simply conform to it in the exercise of its discretionary powers for that is tantamount to an illegitimate exercise in judicial law-making. The remedy for a deficiency is legislation. The enactment in UK of the Human Rights Act (1998) brought home the Convention Rights under the ECHR which was only possible in Strasbourg. In this sense, the human rights protected only under the ECHR were enforced in UK and at the same time preserving the sovereignty of the parliament. This strengthened the interpretative duties of the courts but they must not invalidate a statute by using human rights’ norms. The HRA provision on amendment of a primary legislation is through remedial order, which is a form of secondary legislation. According to Laws LJ in the case of International Transport Roth Gmbh (lorry drivers case), the HRA has provided the common law with a foundation to the acceptance of constitutional rights, as well as new procedural measures to protect those rights. It reveals a balance between the supremacy of Parliament’s legislations and Convention rights. And Lord Clyde views it as a procedure more accessible to citizens than a recourse to Strasbourg, the venue for human rights issues under the Convention (Bonner, Fenwick and Harris-Short 2003). Seemingly, it is a move of the British system from parliamentary supremacy to constitutional supremacy. A conflict between a primary legislative provision with a Convention right have to be interpreted in the light of the applicable HRA provision, taking into consideration a dialogue with the executive and legislature. Section 2 of HRA enjoins the court to have regard to ECHR jurisprudence. While in Section 3, the offending provision should be interpreted to render it compatible with convention rights, or to remove the incompatibility through interpretation. Otherwise, there must be a declaration of incompatibility as a last resort. But Bonner (2003) believes that section 2 does not bind the courts and can depart from the ECHR jurisprudence because of Strasbourg’s lack of precedent. Many of ECHR jurisprudence are highly particularistic, relying to the ‘margin of appreciation’ doctrine as an international tribunal, and not available as such to a national court. Even Lord Hoffman (in Alconbury) himself would not apply ECHR decisions that would conflict with the distribution of powers under the British Constitution. In the same Alconbury case, Lord Slynn suggested that judges should normally follow the ECHR case law absent unusual circumstances. But Lord Chancellor Irvine, during the House of Lords debates on the Bill, suggested departure from existing Strasbourg decisions when appropriate. Departing the ECHR jurisprudence will enable a court to build extra protection above that protection offered by ECHR. The declaration of incompatibility as a last resort should be avoided unless clearly impossible to do so. It differs from judicial invalidation of legislation because it affords no remedy to the litigant and the provision remains valid. Without remedial action, a court must apply the law. The task of interpretation is an extension of the traditional judicial role of judges. Section 3 requires that primary legislation be read and given effect is such a way that would render it compatible with Convention rights. The duty set out in that section goes beyond the pre-HRA interpretative power ruled in Brind. The provision of ‘three convictions means life’ in section 2 of the Crime Act (1997) in the case of R v Offen, when read with Article 5 of ECHR, resulted in avoiding the imposition of life imprisonment. The policy of the state is to protect the public from serious and continuing danger. But taking into account the offender’s circumstances, he was found to be not a danger to the public, and thus, an exceptional circumstance justifying the departure from the mandatory penalty of life sentence (Bonner, Fenwick and Harris-Short 2003). Section 3 enabled a narrower construction of the express language. Schiemann LJ, in the asylum case of R v Secretary of State for the Home Department, Ex parte Aleksejs Zenovics, said that although the court hesitates to redraft an Act, not doing so could not give rise to a situation the Parliament did not desire. Likewise, words used can be expressed in different language to be ECHR-compatible. The words prove and proves in section 28 of the Misuse of Drugs Act (1971) in R v Lambert, was held by Lord Steyn to mean giving sufficient evidence. There are a lot more cases of similar nature. Consistent with HRAs preservation of parliamentary supremacy, it was agreed that courts’ role in applying section 3 is interpretation and not legislation. The boundary must be delineated between permissible interpretation and impermissible legislation. To avoid from straying in its interpretative role, the court must identify provisions that produces incompatibility to properly apply section 3 (Bonner, Fenwick and Harris-Short 2003). In the case of Mendoza v Ghaidan, the Court of Appeal has rewritten the law, placing itself above the Parliament. An earlier case of Fitzpatrick v Sterling Housing Association decided that a survivor of a same-sex couple could be counted as family and could succeed to tenancy. Mendoza appealed on the judgement and claimed to be granted the status of a espouse under the Human Rights Act of 1998 instead of being a mere family member and raised the issue of discrimination. The court viewed discrimination with a high constitutional importance. It ruled that a claimant demanding a status equivalent to marriage should be granted (Hewson, B. n.d.). Barber (2000) suggested that the relationship between the court and Parliament is not merely a legal issue but a political one. To sovereignty theorists, the sovereign is the supreme source of law. The courts did what the sovereign told them not as an obligation but because the sovereign was the most powerful actor in the legal system. In this light, the Grundnorm of Kelsen suggested a single supreme rule in a legal system. The Grundnorm is the foundation of the constitution. The latter, in turn provided the set of rules used to test the legal identity of lower legal norms. If a lower legal norm is challenged, it can be defended by pointing to a higher legal norm. Hart, on the other hand, used the term ‘rule of recognition’ in identifying other rules and to signify a supreme rule at the top of the legal system. Only when a rule has met the requirements of the rule of recognition can be it recognised. Thus, a Parliament’s enactment becomes a law when passed by the two Houses and validated by the Crown. However, there are several unranked sources of legal power in the English legal system. The relationship between the judges and Parliament requires a more complex model than the sovereignty theorists’ model. Thus, Barber (2000) proposed the following ways in which a judge may do in relation to a statute: (a) apply the statute; (b) develop the statute in a manner required by the law; (c) develop the statute in a manner not required by the law; (d) develop the statute in a manner forbidden by law; (e) change the statute in a manner required by the law; or (f) change the statute in a manner not required by the law. References Alder, J. (2000) ‘Dissents in Courts of Last Resort: Tragic Choices?’, Oxford Journal of Legal Studies, 20 (221) Barber, N.W. (2000) ‘Sovereignty Re-examined: The Courts, Parliament, and Statutes’, Oxford Journal of Legal Studies, 20 (131) Bonner, D, Fenwick, H. and Harris-Short, S. (2003) ‘Judicial Approaches To The Human Rights Act’, International and Comparative Law Quarterly, 52.3(549) Doctrine Of Precedent - Law Making Potential [Online]. Available from: http://www.lawteacher.net/ELS/Law%20Making/Judicial%20Precedent%202.htm [Accessed 18 April 2005] Hewson, B. (n.d.) Judge-ocracy Ahead, A Recent UK Court Case Indicates that Unelected Judges are Making Laws Himma, K.E. (1999) ‘Judicial Discretion and the Concept of Law’, Oxford Journal of Legal Studies, 19 (71) House of Commons Library/Littleboy, C. and Richard Kelly, R. (2005) Pepper v Hart. London: Parliament and Constitution Centre. SN / PC / 392 National Decisions (1967) R v Clegg And Another, Court Of Appeal, Criminal Law Act. (NI) 1967, s 3 The Denning Story (n.d.) Tur, R.H.S. (2002) ‘Time And Law’, Oxford Journal of Legal Studies, 22 (463) Read More