“In fact,…, judges neither should be nor are deputy legislators, and the familiar assumption, that when they go beyond political decisions already made by someone else they are legislating, is misleading.” (Ronald Dworkin)
Discuss by reference to ONE judgement in Fuller, ‘The Case of the Speluncean Explorers’ (1949) and by reference to Lloyds Bank v Rosset [1991]
Whether judges legislate through their rulings, and if they should, is a focal point of academic debate in the legal community. The notion of separation of powers dictates Parliament commands the legislative function – and the Courts the judicial function – which implies “all that a court of law can do with an Act of Parliament is to apply it” , ergo not acting as ‘deputy legislators’. Yet in applying the law provided by Parliament, judges arguably can in fact legislate, as scrutinization of Lloyds Bank v Rosset [1991] and ‘The Case of the Speluncean Explorers’ (1949) reveals. Such a conclusion does hinge on one’s view of the nature of the law, hence this issue will also be examined. If one is to adopt Hart’s approach of defining law as merely a set of rules, it is possible for judges to act as deputy legislators. However, if Dworkin’s analysis of law as encompassing a much wider definition is favoured, this cannot be the case. Whether judges should be is an entirely separate issue this essay will also consider.
Considering a legislator is a person who makes law, the term ‘deputy legislator’ suggests that courts are making legislation in subordination to another body. Even the briefest of analyses will deduce this is an accurate term with which to describe UK courts, contrary to the question’s quote. The state of continual change of modern society creates “a continual need for new legal rules to resolve new issues” , which courts supply through their interpretation of statutes and determination of the scope of precedents. This is demonstrated most aptly in ‘novel cases’, in which the lack of existing law dictating the decision either way necessitates a debate ensue over what the law should be. In deciding between the plethora of opinions heard during this discussion, the judges are thus ‘making’ new law since they affirm what they deem the ‘correct’ approach and dismiss all others. The accumulation of laws ‘made’ by judges is manifested in the common law; which is subordinate to the legislation of Parliament because, as the sovereign, it can either overturn common law rules or “tacitly confirm[s] them by failing to do so” . For these postulations to be entertained, however, it must be accepted that law is no more than a set of rules.
It is this tenet that causes ‘natural law’ supporters to disagree, and instead argue that judges are not deputy legislators. The theory contends that law originates from God because it reflects his morals, and it precedes the judges as a consequence. This means the law may never be ‘made’ – only ever ‘declared’ – by them, as it already existed before they stated it. Furthermore, it stresses that, out of the many options available to them, judges can select a single ruling that is the ‘natural’ solution to the problem. This is an unfeasible assumption for two reasons. Firstly, almost all cases involve dissenting opinions (which, in and of itself, illustrates the puerility of asserting judges will find a moral solution to all situations), and secondly, had the court’s sitting been composed of different judges, an entirely different definition of the law might have been ‘declared’. How does dispute over the what the law should be, or the potential for a completely juxtaposed definition of law to be reached based on such an arbitrary characteristic as the judges in court, instil confidence that laws and morality have coalesced? Therefore, due to the evident – at least – partial separation between law and morality, the law cannot be said to have derived from God, meaning it does not precede judges and they are thus adjudicating when discretion is used because they cannot be declaring pre-existing law.
Judges also act as deputy legislators by developing the common law; statutory interpretation is not the only method. This refers to the way in which the judges, by determining the scope and relevancy of a precedent to a case, ‘make’ law by altering how that precedent will consequently be appropriated in future cases. In Lloyds Bank v Rosset [1991], for example, whilst reaffirming the approach assumed in Gissing v Gissing [1971] , the court redefined the foundations of constructive trusts. In Gissing, it was concluded that a constructive trust’s formation is “based upon the proposition that the person in whom the legal estate is vested holds it as trustee upon trust to give effect to the beneficial interest of C as cestui que trust” that so induced C “to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land” . However, during Lloyds, Lord Bridge declared that for a constructive trust to be formed, it must first be found that “there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between [the trustee and the other] that the property is to be shared beneficially” . In this way, the House of Lords revised the central component of constructive trusts to be that of common intention; where it was previously enough for Cs to show they were induced and thus acted to their detriment, future Cs now have to demonstrate there was a common intention (either expressly or inferably) to share the property beneficially – which subsequently resulted in them acting to their detriment. Is this not the decision of a body acting as a deputy legislator?
Hart’s theory would answer this question affirmatively. He argues that “law may most illuminatingly be characterised as a union of primary rules of obligation with… …secondary rules” , whereby primary rules are ‘duty imposing’ and secondary rules are ‘power-conferring’. Moreover, primary rules are those that define the actions human beings are required to abstain from, whether or not they want to; secondary rules, by contrast, “specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied and the fact of their violation conclusively determined”. It is contended that primary rules, unaided by secondary rules, would devolve into merely customs followed by a group of people because there would be no authoritative body or text to settle doubt surrounding the law; no defined method for the law to develop; and no defined individuals to adjudicate, or a process for such individuals to follow.
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