The Role Of A Final Appeal Court In A Democracy: The House Of Lords Today*
| Author | R. B. Stevens |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb02903.x |
| Date | 01 September 1965 |
| Published date | 01 September 1965 |
THE
MODERN
LAW
REVIEW
Volume
28
September
1965
No.
5
THE ROLE
OF
A FINAL APPEAL COURT
IN A DEMOCRACY:
THE HOUSE
OF
LORDS TODAY*
WHAT
is the role of a final appeal court
?
Is
there a justification
for
the continued existence
of
the House
of
Lords as
a
judicial body
?
Before elaborating
on
these themes,
I
should like to say a little
about the English and American approaches to law, since as was
just suggested,
I
find myself
"
suspended
yy
between these two
legal traditions. The differing approaches have a profound impact
on
attempts to rationalise the appeal process.
To
an English
audience
I
think
it
appears at times as
if
American legal writers,
whether judges
or
academics, are somewhat like the John Birch
Society; but whereas the John Birch Society finds some element
of
the Communist conspiracy lurking beneath the most innocent
of
political decisions, American academic lawyers sometimes appear
to find judicial legislation
or
the judicial development of a new
policy
or
at least some element of judicial predisposition lurking in
the most innocent looking appellate decisions.
On
the other hand,
to an American audience English judges and academic writers often
seem almost exclusively concerned with the analysis of articulated
doctrines and uninterested in doctrinal techniques
or
techniques of
rationalisation which serve to emphasise the creative element in
the common law. The paradigm case
at
first instance-the core
situation-appears to absorb
so
much attention that little concern
is expended
on
the appeal process; and legal analysis often appears
to be limited to what the judges say, rather than seeking to discover
whether the articulated analysis corresponds with what the judges
have in fact been doing.
The last thing I.should want today, speaking in this place, would
be to give any hint that
I
was suggesting that such appearances
*
The text of
a
Special University of London Public Lecture delivered
at
the
London School of Economics
on
May
5,
1964.
Since the purpose of this lecture
was
to promote discussion rather than to offer
a
definitive view of the appeal
process.
no
effort
has
been made (other than the addition of footnotes) to turn
the
manuscript
into
a
more traditional article form.
509
VOL.
28
18
510
THE
MODERN
LAW
REVIEW
VOL.
28
represent the truth.
Nor
do
I
wish to espouse one alleged approach
and denigrate the other. But
I
do feel the American concern with
the judicial process and the creative element in the common law
is
particularly appropriate
in
analysing the role of appeal courts, for
appeal courts, and this is a point
I
should like to stress, are primarily
concerned with penumbral issues. Appeal courts are concerned with
the difficult and important points of law, the extension
or
restriction
of doctrines, the choice between competing doctrines
or
the resolu-
tion
of
doubts in the interpretation of statutory enactments.
While not always admitted by lawyers, such
a
role is assumed by
politicians. In the
1984
debates in Parliament dealing with civil
appeals to the House of Lords and those dealing with the
1960
Act
allowing a more general right
of
appeal in criminal cases,
it
was
clearly the concern of Parliament that only those issues which did
present peripheral questions (in the sense of presenting
a
new
or
legal issue) should be the subject of appeals.’ The mere fact that
appeals to the Lords may only
be
taken
on
important points of law
implies the existence of some doubt about the law. Since appeals
are allowed only where there is doubt, the task
of
the final appeal
court
is
to resolve that doubt; and the resolution
of
such doubt will,
because
of
the nature of language and legal reasoning, involve
a
creative choice.
In
this respect
I
am prepared to assume that judges
in the final appeal court make law, whatever that may mean (and
most of the disputes in this area are definitional rather than sub-
stantive).
I
am happy to adopt either the Cardozo view that
it
is
“self-evident” that appeal judges make law
or
agree with Lord
Radcliffe’s
“
surprise that
so
much pen and ink has been employed
by commentators in demonstrating this fairly obvious conclusion.”
a
The implications of these self-evident and obvious truths, have
not, however, always been followed through
in
this country in the
discussions of the appeal process. In the United States,
on
the
other hand, political necessity has forced rationalisation and
apologia
for
appeal courts. They are constantly under scrutiny;
the political importance of judicial review ensures this.
It
poses
the fundamental problem of the clash between popular sovereignty
and the power of the judges-in an unsophisticated sense, the clash
between democracy and judge-made law. The battles between the
advocates
of
judicial restraint and judicial activism, the appeals to
“
principled decisions,”
“
neutral principles
’’
and
“
passive
virtues
’’
on
the one hand and the justification of the functions of the
Supreme Court and the final courts of appeal in the several states
as representatives of some higher law, as guardians of the will of
the people and as the representatives of a democratic process in
themselves, are all but aspects of the perpetual analysis of the
1
See
the Administration
of
Justice (Appeals) Act, 1934,
as.
1,
3;
Administration
2
Radcliffe,
The
Lao
and
Its
Compass,
1960,
p.
39.
of
Justice Act, 1960,
8.
1.
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