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Judges and Policy*

Published online by Cambridge University Press:  12 February 2016

P.S. Atiyah
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Extract

Nobody would deny that in a considerable proportion of cases which come before a judge for decision, the law is clear, and indeed often undisputed by the parties. In these cases, the Judge's duty raises no special problem so far as the law is concerned, though it may do so as to the facts. But it is also true that there are a significant number of cases in which the law or at least its application, is unclear, and the nature of the judicial role is then more controversial. During the last few decades legal theorists and judges themselves have often discussed these questions in various public pronouncements. In this lecture I want to focus principally on a number of assumptions and views about the judicial role which appear to be largely peculiar to the English, or perhaps Commonwealth judiciary. But before I look more closely at the English judiciary, I would like to set the discussion into a broader theoretical framework.

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Articles
Information
Israel Law Review , Volume 15 , Issue 3 , July 1980 , pp. 346 - 371
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1980

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References

1 “The Judge as Law Maker” (1972) 12 Journal of the SPTL 22, 22–23.

2 Southern Pacific Co. v. Jensen 244 U.S. 205, 221.

3 The Nature of the Judicial Process (Yale, 1921) 129.

4 See n. 2.

5 Indeed, in a specific context, Lord Hailsham virtually said this in Woodhouse Israel Cocoa Co. v. Nigerian Produce Marketing Co. [1972] A.C. 741, at 757.

6 Op. cit., supra n. 3 at 107–108.

7 The Judge (Oxford, 1979) Chap. 1.

8 Griffith, J., The Politics of the Judiciary (1977).Google Scholar

9 “Is Law a System of Rules?” in Essays in Legal Philosophy, Summers, , ed. (Oxford, 1968) 25.Google Scholar

10 “Rules, Policy and Decision Making” (1968) 77 Yale L.J. 411.

11 An archetypal example is the decision in Hedley Byrne & Co. v. Heller and Partners [1964] A.C. 465.

12 (1968) 77 Yale L.J. 429.

13 Ibid., at 430.

14 See for example, Raz, J., “Legal Principles and the Limits of Law” (1972) 81 Yale L.J. 823CrossRefGoogle Scholar; Soper, , “Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute” (1977) 75 Mich. L.R. 473.CrossRefGoogle Scholar

15 [1964] A.C. 1129.

16 See “Hard Cases,” first published in (1975) 88 Hvd. L.R. 1057, reprinted with revisions in Taking Rights Seriously (2nd impression, 1977) and “No Right Answer?” in Law, Morality and Society, Hacker, and Raz, , eds. (Oxford, 1977) 58.Google Scholar

17 See e.g., Greenawalt, , “Policy, Rights and Judicial Decision” (1977) 11 Georgia L.R. 991.Google Scholar

18 Taking Rights Seriously at pp. 294–301.

19 The Courts as Legislators (Birmingham, 1965) 2.

20 (1868) L.R. 3 H.L. 330.

21 [1932] A.C. 562.

22 Op. cit., supra n. 19 at 2.

23 “Judicial Activism” (1975) 28 Current Legal Problems 1, 2.

24 The Judge, Chap. 1.

25 Ibid., at 5, and Samples of Lawmaking (Oxford, 1962) 119. One wonders if the Hedley Byrne case decided (with Lord Devlin's assistance) in 1964 qualifies as a “completely new principle”

26 The Judge, at 10.

27 Op. cit., supra n. 1 at 27.

28 Ibid., at 23.

29 Op. cit., supra n. 19 at 6.

30 Reg. v. National Insurance Commissioner [1972] A.C. 914, 1005.

31 Op. cit., supra n. 23 at 5.

32 Op. cit. supra n. 8 at 175.

33 English and American Judges as Lawmakers (Oxford, 1969) 5.

34 Not in Feather Beds (London, 1968) 265.

35 Ibid., at 273.

36 The Judge, at 3.

37 Ibid., at 12.

38 Op. cit., supra n. 23 at 3.

39 [1980] 1 All E.R. 529.

40 At 541.

41 At 542.

42 At 548.

43 At 550.

44 At 551.

45 Op. cit., supra n. 8 at 179–180.

46 In Albion's Fatal Tree, Hay, and others, eds. (London, 1975).Google Scholar

47 Ibid., at 55.

48 See my The Rise and Fall of Freedom of Contract (Oxford, 1979) 191–3.

49 The Judge, at 4.

50 Op. cit., supra n. 33 at 32.

51 “The Contribution of an Independent Judiciary to Civilization” (1942) reprinted in Jurisprudence in Action, Legal Essays selected by the Association of the Bar of New York (N.Y., 1953) 227.

52 Op. cit., supra n. 8 at 196–7.

53 [1980] 1 All E.R. 529, at 551.

54 Op. cit., supra n. 3 at 107–8.

55 See Summers, R. S., “Two Types of Substantive Reasons; The Core of a Theory of Common Law Justification” (1968) 63 Cornell L.R. 707.Google Scholar

56 The Judge, at 17.

57 The Judge, especially at 3–9.

58 Op. cit., supra n. 33 at 73.

59 Op. cit., supra n. 8 at 176.

60 [1970] A.C. 1004. I am in this paragraph using “policy” in the broadest sense to include what Dworkin would call “principles”.

61 Op. cit., supra n. 51 at 234. But for the argument that the courts may be able to play a useful role in a society where the spirit of moderation does flourish, see Rostow, , “The Democratic Character of Judicial Review” (1952) 66 Hvd. L.R. 193.Google Scholar