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CHAPTER 1 Introduction

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Whether the courts should take policy considerations into account when deciding cases (and, if so, to what extent) is both controversial and disputed. Some lawyers argue that courts should never base their decisions on policy factors. This was Dworkin’s argument and has, more recently, been repeated by Robert Stevens: We should not ask our judges to resolve questions of policy and, if asked, they should decline to provide answers that they have neither the ability nor legitimacy to give. Judges should adjudicate on rights and leave issues of policy to be discussed by aca demics and resolved by the legislature. 27 What this assumes is that certain types of argument and consideration fall within the (demo cratic and/or intellectual) competence of judges and others do not, and that judges should therefore base their decisions only on the factors they are competent to evaluate. But how do we draw this line? And is it tenable in practice? In many ways, the distinction between policy and principle draws a questionable dichotomy. Everyone is agreed that sometimes the courts modify or develop the law. In other words, some times courts do more than simply follow the decisions reached and rules set down in previous decisions and statute. As such, they have a ‘creative’ (quasi-)legislative function. This means that courts will sometimes have to look beyond the established precedent and statute law—to ‘extra-legal’ considerations of fairness or justice, economic efficiency and the like—to deter mine how a case should be decided. 28 Why then should we consider, as the likes of Dworkin and Stevens argue, that some ‘extra-legal’ considerations are acceptable for courts to take into account, while others must be excluded? The democratic argument—that it is the business of Parliament and not the courts to decide what the law should be—is an argument against all judicial creativity. It does not matter whether the courts employ moral arguments or other sorts of considerations. In each case, the law is open to the challenge that key decisions about our rights and liabilities are not being taken by a democratically elected body. And, in each case, the answer is that this may not be democrati cally ideal but this is the way the law has always been and always will be. Similarly, the argument that judges are not ‘experts’ on policy matters, and so should con sider only ‘moral’ rights or questions of fairness and justice when deciding new points of law, makes little sense unless we can say that judges are experts on such moral questions. Otherwise, judges’ lack of expertise should prevent them from making arguments of policy or of moral principle. And yet it seems that there is no reason to view our judges as having any particular understanding or competence in relation to questions of morality and justice or that, by contrast, their understanding of policy matters is noticeably weaker. As such, it is far from apparent why certain types of argument—of morality, fairness, etc—can be entrusted to judges while others—such as policy considerations—cannot. Therefore, in the end the argument that courts should not take policy considerations into account when deciding cases appears rather dogmatic. Moreover, irrespective of whether

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27. Stevens n19 311. See also Peter Cane’s discussion of this in his review of Stevens’s Torts and Rights ((2008) 71 Modern Law Review 641, 644–6). 28. Although cf Beever n12 .