Waldron: political choices, but why not?

In his book, The Law, Waldron agrees that judges do exercise discretion, and that they are influenced in those choices by political and ideological considerations, but argues that this is not necessarily a bad thing. He contends that while it would be wrong for judges to be biased towards one side in a case, or to make decisions based on political factors in the hope of promotion, it is unrealistic to expect a judge to be 'a political neuter - emasculated of all values and principled commitments'.

Waldron points out that to be a judge at all means a commitment to the values surrounding the legal system: recognition of Parliament as supreme, the importance of precedent, fairness, certainty, the public interest. He argues that this itself is a political choice, and further choices are made when judges have to balance these values against one another where they conflict. The responsible thing to do, according to Waldron, is to think through such conflicts in advance, and to decide which might generally be expected to give way to which. These will inevitably be political and ideological decisions. Waldron argues that since such decisions have to be made 'the thing to do is not to try to hide them, but to be as explicit as possible'. Rather than hiding such judgments behind 'smokescreens of legal mystery. . . if judges have developed particular theories of morals, politics and society, they should say so up front, and incorporate them explicitly into their decision-making'.

Waldron suggests that where judges feel uncomfortable about doing this, it may be a useful indication that they should re-examine their bias, and see whether it is an appropriate consideration by which they are to be influenced. In addition, if the public know the reasoning behind judicial decisions 'we can evaluate them and see whether we want to rely on reasons like that for the future'.

TASK VII    Make up the list of arguments put forward by the author of each legal theory. Arrange them in the form of the chart:

 

Name of the author	Key ideas of the theory	Conclusion
Waldron	1. Judges do exercise discretion 2.Judges are influenced by political and ideological considerations.	?

 

TASK VIII The text below discusses the advantages and disadvantages of case law. Divide it into logical parts and entitle each of them. Discuss it in groups, add the arguments of your own.

  

              Advantages of case law and judicial precedent

Judicial precedent means litigants can assume that like cases will be treated alike, rather than judges making their own random decisions, which nobody could predict. This helps people plan their affairs. Case law is a response to real situations, as opposed to statutes, which may be more heavily based on theory and logic. Case law shows the detailed application of the law to various circumstances, and this gives more information than statute. The right-wing philosopher Hayek has argued that there should be as little legislation as possible, with case law becoming the main source of law. He sees case law as developing in line with market forces; if the ratio of a case is seen not to work, it will be abandoned, if it works it will be followed. In this way the law can develop in response to demand. Hayek sees statute law as imposed by social planners, forcing their views on society whether they like it or not, and threatening the liberty of the individual Law needs to be flexible to meet the needs of a changing society, and case law can make changes far more quickly than Parliament. The most obvious signs of this are the radical changes the House of Lords has made in the field of criminal law, since announcing in 1966 that they would no longer be bound by their own decisions.

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