Sunday, 13 November 2011

Judiciary v legislators

The following article in the Daily Telegraph is of interest as it points up the roles and conflicts between legislators and judges:

My immediate thought was that the article is simplistic.  There is a tension in the relationship between law makers and law interpreters but the history is long and the instances to which the author refers have to be put in context.

Law students of my generation were weaned on A.V. Dicey in respect of constitutional law: separation of the powers of the executive, legislature and judiciary; the supremacy of parliament; the rule of law.

An important day in my life was 1st January 1973 when I was appointed a law lecturer.  The other event of that day was the UK's accession to the Common Market.

Since my student days there has been a massive increase in statute law and regulations made under the authority of legislation in virtually all aspects of life and activity.  This has led to the mushrooming of administrative law, in particular judicial review. Since accession to the Common Market the power of the UK parliament has diminished as law making powers have been ceded to the European Union and power granted to the European Court. The UK is now a signatory to European human rights legislation and this have given power to the European Court of Human Rights. So, Dicey has to be revisited.

An interesting commentary is:

Judges do not decide cases in a vacuum.  Oliver Wendell Holmes Jnr. put it pithily:

The life of the law has not been logic; it has been experience.

The following is a useful introduction to Holmes:,_Jr.

The significant issue is how far judicial activism should go in protecting the individual from the power of the executives and legislatures.  This is, in part, how to reconcile conflict between individual rights and powers and social legislation.  What should be the parameters of judicial review?

Often, when deciding cases, judges have to weigh social, private and public interest considerations. A university objected to the development of a council housing estate on the grounds that electrical goods in the houses would cause interference to their delicate instruments. How to determine whether the private interest of the university, the social benefit of slum clearance for which the council houses had to be built, or the public interest in the advancement of science would be paramount? From the link above we read:

Holmes sets forth his view that the only source of law, properly speaking, is a judicial decision. Judges decide cases on the facts, and then write opinions afterward presenting a rationale for their decision. The true basis of the decision is often an "inarticulate major premise" outside the law. A judge is obliged to choose between contending legal theories, and the true basis of his decision is necessarily drawn from outside the law.

The conundrum is what happens when the premises on which judges decide cases are different from those of legislators and it is this which is nub of the Daily Telegraph article.

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