JUDGES AND LAWMAKERS*
| Published date | 01 January 1976 |
| Date | 01 January 1976 |
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01439.x |
THE
MODERN LAW REVIEW
Volume
39
January
1976
No.
1
JUDGES
AND
LAWMAKERS
*
IN
recent years
a
number of pens have been put to paper to criticise
the English judiciary for its torpidity. What is needed today, it is
said,
is
a
dynamic, or at least an activist, judiciary, ready and
willing to develop the law to fit the changing times. The sloth of the
British judges is contrasted with the zest of the American. Certainly
no one who reads of the doings of the Warren Court in
a
book such
as that by Professor
Cox1
can fail to be struck by its boldness.
Professor Jaffe in his book English and American Judges
as
Law-
makersa compares in an attractive and balanced way the two
judicial attitudes and gives his reasons for preferring the American.
Behind some of these ideas there seems to me to lurk an assump-
tion too easily made that judging and lawmaking are much the same
thing, that
a
good judge ought to be
a
good lawmaker, that the two
activities call for the same qualities.
I
question this assumption and
must therefore begin by distinguishing between judging and
lawmaking.
First, lawmaking.
I
am not one of those who believe that the only
function of law
is
to preserve the status quo. Rather
I
should say that
law
is
the gatekeeper of the status quo. There is always a host of new
ideas galloping around the outskirts
of
a
society’s thought. All of
them seek admission but each must first win its spurs; the law at
first resists, but will submit to a conqueror and become his servant.
In
a
changing society (and free societies that are composed of two
or more generations are always changing because it is their nature
to
do
so)
the law acts as a valve. New policies must gather strength
before they can force an entry: when they are admitted and absorbed
into the consensus, the legal system should expand to hold them,
as also it should contract to squeeze out old policies which have lost
the consensus they once obtained.
I
have now used three words which are frequently employed in
discussions of this sort-consensus, activist, dynamic.
I
must give
each of them a sharper definition.
Economics
on
25
June 1975.
*
This was the
Fourth
Chorley
Lecfure
delivered at the London School
of
2
Clarendon Press, Oxford, 1969.
Archibald
Cox.
The
Warren
Courf
(Harvard U.P., 1968).
1
VOL.
39
(1)
1
2
THE
MODERN LAW REVIEW
[Vol.
39
Alistair Cooke has written: “When the people in power can
neither keep the consent of the governed nor keep
down
the dissent
of the governed, then there
will
be
a
blow-up.”3 Adopting this
aphorism one may say that the consensus in a community consists
of those ideas which its members as
a
whole like or, if they dislike,
will submit to-what is for one reason or another acceptable. By
activist lawmaking
I
mean the business of keeping pace with change
in the consensus. Dynamic or creative lawmaking is the use of the
law to generate change in the consensus.
A
law that tried to impose
an alien idea upon a free society would come to grief. But in
a
free
society the progress of
a
new idea from the attraction of some
sympathy to the support of an active minority, thence to the
acquiescence of the majority and finally to
a
consensus is usually
very slow. Since all men are not the ardent and enlightened beings
that reformers would like them to be, a touch of the whip to hasten
laggards can have
a
good result. Reformers are always anxious to
try it and recently we have seen it used in this country with varying
achievements. It is generally agreed that there was
no
consensus,
probably not even
a
bare majority, for the abolition of capital
punishment or the reformation of the laws against homosexuality.
Nevertheless both changes were made and are now accepted; the
latter change has surely helped to promote
a
more tolerant attitude
to homosexuals. The law has likewise been used cautiously in the
field of race relations with,
I
believe, some success; and not
so
cautiously in the field of industrial relations without success.
To
be
successful the exercise has to be nicely judged; the
vis
inertiae
must
be calculated and hostility assessed in terms of the power to resist
actively or passively; the ability to make this nice judgment belongs
to the art of politics.
Of
course
I
am not saying that there should be
no
legislation
without consensus, nor am
I
concerned to offer
an
opinion about
the wisdom of dynamic lawmaking.
On
the one hand it
is
said that
government should offer leadership to
a
nation:
on
the other hand
it is certain that
a
series of political misjudgments in the use of the
law would diminish respect for it. My question is not about dynamic
lawmaking but about whether the judiciary should be employed in
it. It would seem to require a surer political touch than
a
judge is
likely to have. Nevertheless there are demands for
a
creative
judiciary to operate upon subjects which governments shirk. It is
argued, for example, that judges made the law of homicide and
so
ought to be ready to give
a
lead
on
such aspects of it as euthanasia
and abortion.
So
much for the moment
on
the lawmaker. What is the function
of the judge? Professor Jaffe has
a
phrase for it--“ the disinterested
application of known law.” He would put it perhaps as the minimal
function.
I
should rank it as greater than that. It is at any rate what
3
Alistair
Cooke,
America
(BBC.
1973),
p.
122.
4
Jaffe,
op.
cif.,
p.
13.
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