Book Section: Judicial Politics
| Published date | 01 March 1971 |
| Date | 01 March 1971 |
| Author | H. J. Elcock |
| DOI | 10.1111/j.1467-9248.1971.tb01924.x |
| Subject Matter | Article |
BOOK
SECTION
J
UD
I
CIAL POLITIC
S1
H.
J.
ELCOCK
University
of
Hull
INTEnesTin the behaviour ofjudges has been increasing in recent years. Judges face
a
perpetual
dilemma between their own views and feelings and their duty to apply the law without prejudice
or
emotional involvement of any kind. The revelation by students of judicial behaviour of the
ways in which judges resolve this dilemma may damage their prestige as adjudicators who are
objective, just, and ‘above politics’. Nonetheless, judges do become involved in political activity,
both because they must, from time to time, decide cases which are concerned with the actions of
politicians, and because their decisions, even in fields which are not themselves political, impinge
upon policy and may provoke
a
political response, as when
a
Court interprets a statute in a way
inimical to the desires and intentions of the Government in
office,
or
when
a
court which has been
given the power of judicial review of legislation declares invalid a measure duly passed by the
legislature and provokes the latter
to
wrath which may lead to action being taken to change
the composition of the court
or
to reduce its power. Furthermore, the courts have a duty to
interpret the law in a way acceptable to the society of which they are a part, Dr. Johnson said
of Lord Mansfield that ‘he made law serve life’; thejudge who would make this kind of contribu-
tion must
be
prepared to become involved in the controversies of his times, and therefore to
become involved in politics.
The theme of Professor Jaffe’s book is that it is both necessary and desirable that judges should
play this sort
of
role. He declares that ifjudges do not attempt to interpret law and the intentions
of legislators, then they have ‘ventured nothing and
so,
they may feel, have lost nothing-
nothing, that is, except the opportunity to be useful’
(p.
31).
He suggests in his first chapters that
the British judiciary has come perilously near to failure in this respect, in that until recently
English judges in particular have shown
a
marked reluctance to check the use and abuse of
discretionary power by the Executive, a tendency which became apparent early in the present
century, notably in
Arlidge’s
case in
1915,2
and which was carried
to
the point of absurdity in
the infamous decision in
Liversedge
v.
Sir John Anderson and Another,
in which, in
a
famous
dissent, Lord Atkin declared that the courts were becoming ‘more executive-minded than the
executive’, Professor Jaffe finds reassurance, however, in such decisions as the curbing of Minis-
terial powers to withhold documents in their possession from production in court for reasons
of public interest, which reasons were subject to no check other than the Minister’s integrity,
by the decision in
Conway
v.
Rimmer,J
which decision, he says, is ‘pleasant to note’ (p.
26).
Professor Jaffe
goes
on to contrast with English judicial caution the increasingly assertive
role being taken by the American Supreme Court, especially in the field ofcivil liberties and rights.
He speaks of the existence in America of
a
public concern with the records of the decisions of
individual judges,
a
concern partly engendered by the institution in certain States of elected
judges, and perhaps also by Senatorial vetting of Presidential nominees for Supreme Court
1
ENGLISH AND AMERICAN JUDGES AS LAW-MAKERS.
By
LOUIS
L.
JAFFE.
(Oxford
University Press.
Pp.
x
+
116.
25s.)
COMPARATIVE JUDICIAL BEHAVIOUR.
Edited
by GLENDON
SCHUBERT
AND
DAVID
J.
DANELSKI.
(Oxford University Press.
Pp. xxii
+
412.)
2
Appeal Cases
(House of Lords),
1915,
120.
3
(1967)
1.
Weekly Law Reports
1031,
and
(1968)
2.
W.L.R.
998.
For a detailed account of
this development see my article, ‘Justice and the Political Order’, in
17
Political Studies
(1969),
pp.
294-312.
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