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JUDGES AND LEGISLATURE: VALUES INTO LAW

Published online by Cambridge University Press:  15 June 2012

Philip Sales
Philip Sales*
Affiliation:
High Court Judge.
*
Address for correspondence: Sir Philip Sales, Royal Courts of Justice, Strand, London WC2A 2LL. Email: MrJustice.Sales@judiciary.gsi.gov.uk
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Abstract

The legislature gives effect to the values of democracy and compromise in a pluralist society, but the legislation it produces is mediated in its application by the values inherent in the legal culture into which it is received. The judges complete the law promulgated by Parliament by applying it. In articulating the common law also, the judges act within the bounds of objective standards supplied by legal and political traditions, with a limited legislative role. The legislative role of the judges in applying statutes has been enhanced by the interpretive obligations applicable in areas where EU and ECHR law operates.

Keywords

ParliamentJudgesLegislationStatutory Interpretation
Type
Shorter Article
Information
The Cambridge Law Journal , Volume 71 , Issue 2 , July 2012 , pp. 287 - 296
Copyright
Copyright © Cambridge Law Journal and Contributors 2012

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References

1 J. Waldron, “Judges as Moral Reasoners” [2009] International Journal of Constitutional Law 2.

2 J. Waldron, Law and Disagreement (Oxford 1999); ibid., “Judges as Moral Reasoners”, note 1 above. A favourite example of Waldron to illustrate the potential quality of debate and moral reasoning on the part of legislators is the debates in Parliament on the Abortion Act 1967. But not all parliamentary debates are so impressive.

3 Bismarck is supposed to have said, “Laws are like sausages. It is better not to see them being made”. But a consciousness of how they are made is also capable of underwriting the respect due to the outcome of the process: see e.g. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York 2004), 236–239; also see P. Sales, “The General and the Particular: Parliament and the Courts under the Scheme of the European Convention on Human Rights” in M. Andenas and D. Fairgrieve (eds.), Tom Bingham and the Transformation of the Law (Oxford 2009), 180 (“there is a certain attraction in the idea that, if respect is to be accorded to the judgment made by a body other than the court (in this case, Parliament), it should be demonstrated that the body has given serious consideration to the issue in question”); Poole, T., “The Reformation of English Administrative Law” [2009] C.L.J. 142, 158–164Google Scholar.

4 L. Wittgenstein, Philosophical Investigations, eds. G.E.M. Anscombe and R. Rhees, trans. G.E.M. Anscombe (Oxford 1958); P. Johnston, Wittgenstein and Moral Philosophy (London 1989), e.g. at pp. 8, 20, 91, 108–109; P. Johnston, The Contradictions of Modern Moral Philosophy: Ethics after Wittgenstein (London 1999), esp. at pp. 58–59 (“… the content of an individual's principles is not separable from their application …”) and p. 69 (“The principle ‘always act in such a way that human dignity is respected’ does not generate judgements; rather, by our specific judgements we show what we mean by it”).

5 See e.g. Lord Reid, “The Judge as Law Maker” [1972] Journal of the Society of the Public Teachers of Law 22.

6 John Gray, Two Faces of Liberalism (Cambridge 2000); Richard Bellamy, Liberalism and Pluralism: Towards a Politics of Compromise (London 1999): John Dunn, The Cunning of Unreason: Making Sense of Politics (London 2000); Frank Furedi, On Tolerance: The Life Style Wars: A Defence of Moral Independence (London 2011).

7 Cf. Simone Weil, The Need for Roots: Prelude to a Declaration of Duties Towards Mankind (1949, trans. 1952, London), 7–12 (“… we owe our respect to a collectivity, of whatever kind – country, family or any other – not for itself, but because it is food for a certain number of human souls … The first of the soul's needs … is order; that is to say, a texture of social relationships such that no one is compelled to violate imperative obligations in order to carry out other ones …”); J. Dunn, The Cunning of Unreason, note 6 above, pp. 361–363; The History of Political Theory and other essays (Cambridge 1996), ch. 5, “Trust”; C. Mouffe, The Return of the Political (London 1993), esp. pp. 6, 146, 151. On the importance of subjecting brute power to a system of authority, see Bernard Williams, Truth and Truthfulness (Princeton 2002), 7–12.

8 Cf. Linda Colley, Britons: Forging the Nation 1707–1837 (Bath 1992), esp. ch. 1; Mark Tushnet, Taking the Constitution Away from the Courts (Princeton 1999), 93.

9 Kramer, The People Themselves, note 3 above, ch. 1 “The Customary Constitution”, describing the way in which exercise of political power was constrained by common social understandings in the seventeenth and eighteenth centuries about the boundaries of the constitution, before the advent of a theory of judicial review.

10 P. Dasgupta, Economics: A Very Short Introduction (Dasgupta 2007), ch. 2 “Trust”, esp. p. 35, comparing and contrasting the operation of the rule of law and social norms; Kramer, The People Themselves, note 3 above, pp. 184–189, on the development of a theory appealing to court rulings to settle points of constitutional controversy as common constitutional understandings broke down; but also see pp. 234ff for Kramer's sceptical comment about the shift to judicial supremacy in relation to ruling on the meaning and effect of the U.S. Constitution; also compare A.W.B. Simpson, “The Common Law and Legal Theory” in A.W.B. Simpson (ed.), Oxford Essays in Jurisprudence (Second Series) (Oxford 1973), at p. 98 (“When … cohesion has begun to break down, and a failure to achieve a consensus becomes a commoner phenomenon, interest will begin to develop in the formulation of tests as to how the correctness of legal propositions can be demonstrated, and in the formulation of rules as to the use of authorities …”); Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven 1921), 24.

11 Lon Fuller, “The Forms and Limits of Adjudication”, reprinted in K. Winston (ed.), The Principles of Social Order: Selected Essays of Lon L. Fuller (revised ed., Oxford 2001).

12 Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge 2007); cf. Johnston, Wittgenstein and Moral Philosophy, note 4 above, pp. 204–210, on the forms which moral argument may take, using a range of techniques well beyond legal forms of argument to try to make others see and come to accept a moral position – “Oliver Twist or David Copperfield can be seen as an attempt at moral persuasion just as valid as any other”; also The Contradictions of Modern Moral Philosophy, note 4 above, at pp. 62–63.

13 J. Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Cambridge 2010), 10–13.

14 See e.g. Joseph M. Jacob, The Republican Crown (Aldershot 1996), ch. 5 on the erosion of respect for the civil service; Benjamin Barber, Strong Democracy (Berkeley 1984); Paul Hirst, Representative Democracy and its Limits (Cambridge 1990); Cardozo, The Nature of the Judicial Process, note 10 above, at p. 28 (“We leave more to legislatures today, and less perhaps to judges. Yet even now there is change from decade to decade …”) and p. 60.

15 See the exploration of this process in modern practice in a series of video interviews with politicians, statutory draftsmen, government lawyers, parliamentary officials and others produced by the Statute Law Society. The series is entitled “Making Legislation” and is available on YouTube and on the iTunesU website via the Society's website, www.statutelawsociety.org.

16 Cf. Sales, “The General and the Particular”, note 3 above, p. 167 (footnote 16) and pp. 178–180.

17 Sales, P., “A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998” (2009) 125 L.Q.R. 598Google Scholar; Goldsworthy, note 13 above, ch. 9 “Parliamentary sovereignty and statutory interpretation”.

18 See the commentary on Lord Steyn's speech in R (Jackson) v HM Attorney-General [2005] UKHL 56; [2006] 1 A.C. 262 in Lord Neuberger of Abbotsbury, “Who Are the Masters Now?” (The Second Lord Alexander of Weedon Lecture, 6 April 2011) and Goldsworthy, note 13 above, ch. 2 “The myth of the common law constitution”.

19 Omychund v Barker (1744) 1 A. and K. 22, 23; 26 E.R. 15, 24; and see Lord Goff of Chieveley, “The Search for Principle” (1983) 59 Proc. Brit. Acad. 169; Sir Terence Etherton, “Liberty, the Archetype and Diversity: A Philosophy of Judging” (2010) Public Law 727; Lord Neuberger, note 18 above.

20 Cardozo, Nature of the Judicial Process, note 10 above, at pp. 68ff, citing Mr Justice Holmes in Southern Pacific Co. v Jensen 244 U.S. 205, 221, “I recognize without hesitation that judges must and do legislate, but they do so only interstitially …”; Lord Reid, note 5 above, pp. 25–26.

21 See A.W.B. Simpson, note 10 above, at p. 94 (“… it seems to me that the common law system is properly located as a customary system of law in this sense, that it consists of a body of practices observed and ideas received by a caste of lawyers, these ideas being used by them as providing guidance in what is conceived to be the rational determination of disputes litigated before them, or by them on behalf of clients, and in other contexts. These ideas and practices exist only in the sense that they are accepted and acted upon within the legal profession …”). Also see Alan Cromartie, The Constitutionalist Revolution: An Essay on the History of England, 1450–1642 (Cambridge 2006) for an account of how legal and constitutional thought grew out of the culture of the Inns of Court, but over-reached itself by culminating in the political claims made by Sir Edward Coke based on the “artificial” reason of the common law, based “essentially on the wisdom of a guild” (p. 215); Alexis de Toqueville, Democracy in America (12th ed. [1848], Everyman ed., London 1994), vol. 1, 272–280, analysing the role of the legal profession, with its love for stability and conservative values, in mitigating the tyranny of the majority; and Jansen Nils, The Making of Legal Authority: Non-legislative Codifications in Historical and Comparative Perspective (Oxford 2010), for a description of a similar process by which legal authority has been bestowed by the use and understanding by lawyers of non-legislative codifications of law (such as the U.S. Restatements) within a specific legal culture and how even the effect given to statutory texts may be modified by their reception within a legal culture (such as in the Prussian, civilian legal system in the nineteenth century: see pp. 45–49). Compare Johnston, Wittgenstein and Moral Philosophy, note 4 above, pp. 108–109, and The Contradictions of Modern Moral Philosophy, note 4 above, pp. 58–59 and 69.

22 See the discussion about the concept of a tradition employed by Alasdair MacIntyre in After Virtue (London 1981) in Johnston, The Contradictions of Modern Moral Philosophy, note 4 above, at pp. 48–49 (“… the real aim [of a tradition] is finding a social solution to the problems of disagreement … this part of MacIntyre's account has the … objective of finding an alternative to ‘subjective’ ways of judging human action. Not surprisingly, what this leads to are socially agreed ways of judging …”). Where the tradition exists appeal can be made to objective standards to resolve disagreement, even though there may be strong and potentially irresolvable moral disagreement in society at large: see ibid., ch. 2 “Believing in Right and Wrong”.

23 There may be considerable advantage for society in terms of promoting rule of law values – in particular, by enhancing predictability of outcomes of cases – by leaving resolution of certain disputes to reference to traditional modes of approach within a cohesive legal community to which members of society may have recourse for advice. For a disturbing discussion of proposals for popular justice to seek to avoid using the form of the judicial system and the moral ideology of decision-making by reference to neutral rules associated with it, see M. Foucault, “On Popular Justice: A Discussion with Maoists”, ch. 1 in M. Foucault (C. Gordon ed.), Power/Knowledge: Selected Interviews and Other Writings 1972–1977 (Brighton 1980).

24 Cf. Cardozo, The Nature of the Judicial Process, note 10 above, at p. 60 (“In these days … we look to custom, not so much for the creation of new rules, but for the tests and standards that are to determine how established rules should be applied. When custom seeks to do more than this, there is a growing tendency in the law to leave development to legislation. Judges do not feel the same need of putting the imprimatur of law upon customs of recent growth, knocking for entrance into the legal system, and viewed askance because of some novel aspect of form or feature, as they would if legislatures were not in frequent session, capable of establishing a title that will be unimpeached and unimpeachable”); Waldron, J., “Can there be a democratic jurisprudence?” (2009) 58 Emory LJ 675Google Scholar.

25 This was part of the motivation for the Statute Law Society for producing the “Making Legislation” videos, note 15 above.

26 Sales, P. and Ekins, R., “Rights-Consistent Interpretation and the Human Rights Act 1998” (2011) 127 L.Q.R. 217, 229–230Google Scholar; Sales, “The General and the Particular”, note 3 above, pp. 177–178; Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge 2009).

27 See, respectively, Case C-106/89 Marleasing S.A. v La Comercial Internacional de Alimentation S.A. [1990] E.C.R. I-4135 and section 3(1) of the Human Rights Act 1998.

28 See Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 A.C. 557.

29 See R. (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 A.C. 189.

30 Sales and Ekins, “Rights-Consistent Interpretation”, note 25 above.

31 See e.g. R. Ekins, “The Intention of Parliament” [2010] Public Law 709.

32 Pepper v Hart [1993] A.C. 593. On the true effect of Pepper v Hart, see Vogenauer, S., “A Retreat from Pepper v Hart? A Reply to Lord Steyn” (2005) 25 Oxford Journal of Legal Studies 629CrossRefGoogle Scholar; P. Sales, “Pepper v Hart: A Footnote to Professor Vogenauer's Reply to Lord Steyn” (2006) Oxford Journal of Legal Studies 585.

33 See e.g. R v Secretary of State for the Home Department, ex p. Simms [2000] 2 A.C. 115; Sales, “A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998”, note 17 above.

34 Case C-106-89 Marleasing [1990] E.C.R.-I 4135 (ECJ); Litster v Forth Dry Dock Engineering Co. Ltd. [1990] 1 A.C. 546; Clarke v Kato [1998] 1 W.L.R. 1647, HL.

35 Alec Stone Sweet Governing with Judges (Oxford 2000); H. Keller and A. Stone Sweet (eds.), A Europe of Rights (Oxford 2009); Sales and Ekins, “Rights-Consistent Interpretation”, note 25 above.

36 Sales, P. and Hooper, B., “Proportionality and the Form of Law” (2003) 119 L.Q.R. 426Google Scholar; Sales, “The General and the Particular”, note 3 above.

37 Cardozo, The Nature of the Judicial Process, note 10 above, at pp. 14–18.

38 Sales and Ekins, “Rights-Consistent Interpretation”, note 25 above; P. Sales, “Strasbourg Jurisprudence and the Human Rights Act” [2012] Public Law 253.

39 There are dangers associated with this approach as well, stemming from a certain relaxation of the responsibility of the Government and Parliament to draft accurately, since the courts will revise the wording of a statute as necessary: see the criticism by Lord Bingham of the legislation under review in A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68 (the so-called Belmarsh case) at [33]. Parliament needs always to bear in mind the strong responsibility lying on it to promote rule of law values by endeavouring to produce well-drafted and accurate legislation, which can be interpreted on its face in a manner compatible with Convention rights without distortion of the ordinary and apparent meaning of the text.