Abstract
Decision-making in the Lords involves group and community processes quite apart from those adverted to in the last chapter. This is because, as we saw earlier,2 a Law Lord is influenced not just by his own conception of his role but also by his fellow Law Lords and their predecessors, and to a lesser extent by other groups in the wider legal and non-legal community. ‘Pivotal’ to his role when deciding an appeal is the expectation, held within and without the legal community, that he should justify his decision by reasoned argument. Furthermore, within the legal community itself there are more or less shared understandings as to what constitutes a valid and acceptable argument for a Law Lord to employ, and as to what standards he may relevantly appeal when justifying his decision.3 Such understandings are in no small way the product of a common socialisation pattern, a traditional training with a received body of knowledge and learning.4 Indeed it has been argued that such traditional practices and ideas, nurtured by a legal caste, are the very essence of the common law.5
It is no doubt unsafe to generalise about judicial process. For after all it is a generalisation about the work of individual men. In no field of special knowledge does one man pursue its technique or exercise its art precisely in the same way as another .… There is no place where the inequalities and variations of men can be seen more clearly than when the men are up on a Bench
Sir Owen Dixon, ‘Concerning Judicial Method’1
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Notes and References
See Prott, loc. cit., and MacCormick, op. cit., chap. I.
A. W. B. Simpson, ‘The Common Law and Legal Theory’ in A. W. B. Simpson (ed.), Oxford Essays in Jurisprudence, Second Series (Oxford: Clarendon Press, 1973).
See R. Dworkin, ‘Hard Cases’, 88 Harv. L.R.. (1975) 1057 and
J. Esser, Vorverstandnis und Methodenwahl in der Rechtsfindung (Frankfurt: Athenaum Verlag, 1970) reviewed by
L. V. Prott ‘Updating the Judicial “Hunch”’, 26 A.J.C.L.. (1978) 461.
R. W. M. Dias, Jurisprudence, 4th edn (London: Butterworths, 1976) p. 279.
Reported in M. Zander (ed.), What’s Wrong with the Law (London: BBC Publications, 1970) p. 71.
Roscoe Pound, An Introduction to the Philosophy of Law (Yale University Press, 1922) p. 19. See in similar vein,
W. Friedmann, ‘Judges, Politics and the Law’, 29 Can. B. Rev. (1951) 811 at p. 837.
J. Stone, Legal Systems and Lawyers’ Reasonings (London: Stevens, 1964).
Lord Reid, ‘The Law and the Reasonable Man’, LIV Proceedings of the British Academy (1968) at pp. 191 and 193.
Lord Radcliffe, The Law and its Compass (London: Faber and Faber, 1961) pp. 10–11.
On the ‘all or nothing’ character of judicial decision-making and the contrast between a mediator and an adjudicator, see inter alia V. Aubert, ‘Law as a Way of Resolving Conflicts’ in L. Nader (ed.), Law in Culture and Society (Chicago Aldine Publishing Co., 1969) p. 282 and
T. Eckhoff, ‘The Mediator, the Judge and the Administrator in Conflict-resolution’, 10 Acta Sociologica (1967) 148.
Quoted by Frankfurter J, ‘The Social Views of Mr Justice Brandeis’ in E. Pollock (ed.), The Brandeis Reader (New York: Oceana Publications, 1956) p. 64.
See K. Vines ‘The Judicial Role in the American States’, J. Grossman and J. Tanenhaus (eds), Frontiers of Judicial Research (New York: John Wiley and Sons, 1969).
Pierre J. J. Olivier, Legal Fictions in Practice and Legal Science (Rotterdam University Press, 1975) p. 150. See also
Lon Fuller, Legal Fictions (Stanford University Press, 1967) p. 53.
E. Goffman, ‘Role Distance’ in Encounters (London: Allen Lane, The Penguin Press, 1972) p. 75.
See R. Cross, Precedent in English Law, 3rd edn (Oxford: Clarendon Press, 1977) pp. 35–7.
In E. London (ed.), The Law as Literature (New York: Simon and Schuster, 1960) p. 692. See also Buckley and Phillimore LJJ in Olympia Oil v. Produce Brokers at p. 750.
For an attack on this passive response see Lord Denning, The Road to Justice (London: Stevens, 1955) pp. 1–2.
The phrase is taken from Stevens, ‘The Role of A Final Appeal Court in a Democracy’, 28 M.L.R. (1965) 509 at p. 519. A similar observation was made in a book review by W. Friedmann in 15 M.L.R. (1952) 386 at p. 389.
Viscount Jowitt, 25 Austr. L.J. (1951) at p. 296.
Lord Cohen, ‘The Court of Appeal’, 11 C.L.J. (1951) 3 at pp. 13–14.
Thus a ‘passive’ approach to a precedent is one which demonstrates a preference for certainty and treating like cases alike as opposed to paying heed to the merits of the case and different social conditions. In this way an attempt to evade a precedent in order to do justice in the individual case is always activist. Similarly a preference for a flexible principle as opposed to a precedent is a creative preference. I would not deny that I had been using the terms evaluatively; they could equally well apply to a decision to stand by a precedent. (See Palley, op. cit., p. 58 and V. Radcliffe, book review 36 M.L.R. (1973) 559 at p. 563.)
In J. D. Wilson, Milestones on the Dover Road (London: Faber and Faber, 1969) p. 133.
R. Cross, Precedent in English Law (Oxford: Clarendon Press, 1961) p. 17. See also p. 27.
See Lord Denning, ‘The Need for a New Equity’ in 5 C.L.P. (1952) 1.
Lord Radcliffe, The Law and Its Compass (London: Faber and Faber, 1961).
Ibid., p. 39. See also his comments in ‘Law and Order’, 61 Law Society’s Gazette (1964) 821.
‘The Lawyer and His Times’, pp. 14–15 in A. Sutherland (ed.), The Path of the Law from1967 (Harvard University Press, 1968).
Lord Radcliffe’s approach (which I shall hereafter call the ‘facade’ approach) has been accused of exhibiting ‘contempt for the democratic process’, by Professor Palley in ‘Decision-making in the Area of Public Order by English Courts’, p. 67. It has also attracted criticism from Professor Jaffe in English and American Judges as Lawmakers (Oxford: Clarendon Press, 1969) pp. 7–8; Robert Stevens in ‘The Role of a Final Appeal Court in a Democracy’ pp. 535–7; and P. S. Atiyah in ‘Judges and Policy’, 15 Israel L.R. (1980) 346.
Professor Lloyd, Introduction to Jurisprudence, 2nd edn (London: Stevens & Sons, 1965) p. 377.
C. K. Allen, 81 L.Q.R. (1965) pp. 36 and 37.
See ‘Precedent in English and Continental Law’, 50 L.Q.R. (1934) 40; ‘Precedents in the Court of Appeal’, 9 C.L.J. (1947) 349; and ‘Precedents in Divisional Courts’, 64 L.Q.R. (1948) 40. Several previous Law Lords (apart from Lords Reid and Denning) had indicated their dislike of the doctrine or had even asserted that it did not really exist. E.g., Lord Wright, ‘Precedents’, 8 C.L.J. (1963) 144;
Lord Evershed in The Court of Appeal in England (London: Athlone Press, 1950) pp. 17–18; and
Lord Cohen in ‘The Court of Appeal’, 11 C.L.J. (1951) at p. 11. Surprisingly Lord Atkin was not in this camp (see his obituary written by Lord Wright in XXXII Proceedings of the British Academy (1946) 307 at pp. 316–17.
E.g. G. Williams in the 11th edn of Salmond on Jurisprudence (London: Sweet & Maxwell, 1957) at pp. 175–88 and 538–9; Cross, Precedent in English Law, 1st edn, p. 250; R. Dias, Jurisprudence, 2nd edn (London: Butterworth, 1964) p. 75; G. Paton, Jurisprudence, 2nd edn (Oxford: Clarendon Press, 1951) pp. 162–3; and P. Fitzgerald, Salmond on Jurisprudence, 12th edn (London: Sweet and Maxwell, 1966) p. 144.
For further details see 83 L. Q R. (1967) 176–7; T. B. Smith, ‘Authors and Authority’, 12 J.S.P.T.L. (1972) 3 at p. 5; and
L. Scarman ‘Law Reform — Lessons from English Experience’, 3 Manitoba L.J. (1968) 47 at p. 57.
See Gardiner and Martin (eds), Law Reform NOW (London: Gollancz, 1963).
This of course was a problem which greatly exercised the commentators both before and after the Statement. See e.g. Julius Stone in ‘1966 and All That!’, 69 Columba L. R. (1969) 1163 at p. 1168 and the Bar Council statements quoted in the New York Times, 27 July 1966, p. 1. As we saw earlier (see p. 22 above) counsel in Cassell v. Broome raised the question of the constitutional validity of the Practice Statement, but did not press the point.
Professor Goodhart in 82 L. Q. R. (1966) 441 at p. 444 wrote that those who contributed to the change were Sir Frederick Pollock, Lord Wright, Lord Evershed and Lord Denning. I do not deny that they may have had some influence in producing a climate receptive to the change but none of them (with the possible exception of Lord Denning) played as large a part in the events immediately prior to the change as Lord Reid did.
Jurisprudence, 4th edn, pp. 180–1. See also A. L. Goodhart in 85 L. Q. R. (1969) 171 at p. 173;
Diplock LJ in Boys v. Chaplin (1968) at p. 35; and
Salmon LJ in Gallie v. Lee (1969) at p. 49.
Cross, op. cit., p. 32.
See Fitzgerald, Salmond on Jurisprudence, pp. 160–1; Dias, Jurisprudence, 4th edn, p. 181 fn 1; and J. Stone ‘1966 and All That!’, 69 Columbia L.R. (1969) 1162 at p. 1168.
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Paterson, A. (1982). The Role of a Law Lord: Conflict and Change. In: The Law Lords. Oxford Socio-Legal Studies. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-06918-7_6
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