REVIEWS
| Date | 01 November 1988 |
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01787.x |
| Published date | 01 November 1988 |
REVIEWS
LAW
JUSTICE
AND
DEMOCRACY:
THE
REITH LECTURES
1986.
By
LORD
MCCLUSKEY.
[London:
Sweet
and
Maxwell,
and
BBC
Books.
1987.
116pp.
Paperback:
f5.95;
Hardback:
Z9.95.1
IN
the
1986
Reith Lectures, Lord McCluskey enters the fierce debate over
the question
of
whether the judiciary should actively legislate in those
areas where the meaning
of
statutory law is unclear. He is firmly against
any such dynamic role for the judges, following the traditional, though
equivocal, argument that to allow the judiciary greater rein in the
performance
of
its law-making role (a role the existence
of
which, at least,
he is willing to admit to) is to politicise that venerable institution. And
whatever may be its qualities, the judiciary is not, nor should it be,
equipped to act as a legislaturethat is, by “making informed policy
decisions.
”
(p.24)
To
define the notion “the politicisation
of
the judiciary,”
of
course, is an
exercise fraught with problems,’ as no doubt McCluskey would
acknowledge. From his Lectures, however, it is far from clear what it is
that McCluskey understands by this term. This, surely, is a serious
omission; it is after all,
on
the undesirable connotations of this very
expression that he bases his stand against a Bill
of
Rights in this country.
Throughout his six lectures McCluskey refers to all the usual features
of
a
discussion in which the relationship between “politics” and the judiciary is
at issue. He professes a distaste for judicial decisions made on grounds
of
“policy” (p.33), insisting instead that it is imperative to use appeals to
“principle” as a basis for judges to decide the issues before them. (p.12)
Where he might be criticised, however, is in not drawing together these
isolated references to form a more coherent model
of
what it
is
he
believes makes a judiciary politicised, and what it is he finds unacceptable
about such a state. The grounds upon which he bases his rejection
of
a
Bill
of
Rights for the United Kingdom are, first, that given the nature
of
the provisions typically set out in a Bill of Rights, the judiciary in order to
apply them would be forced to consider the political as well as the legal
aspects
of
the cases before them, and secondly, that a Bill
of
Rights, in
disturbing the present balance
of
constitutional powers, would do
so
illegitimately in favour
of
the judiciary. (p.45)
McCluskey begins the construction
of
his argument with a qualification
by affirming the almost universally accepted notion that,
“in
deciding the
cases that come before them, judges can and do make law.” (p.21) This,
he observes, is inescapable: “[elvery time a court determines the result in
a
particular case by redefining and developing legal principles in such a
way to ensure that they will govern in future cases, it is performing a
function that resembles the legislative function.” (p.
16)
McCluskey here recognises, implicitly, the dual sources
of
law: judge-
made or common law, and that prescribed by the legislature. Law from
both sources can meet Lord McCluskey’s criteria
of
what is “good” law-
namely, that it is “coherent predictable and principled, [and] also produces
results which are socially acceptable.” (p.23) According to traditional
J.
Bell,
Policy
Arguments
in Judicial Decisions,
(Oxford, 1983),
p.6.
804
To continue reading
Request your trial