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Bhurhan Uddin

Northampton, United Kingdom

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Summary

Practice Areas:

  • Probate
  • Commercial Property
  • Company Disposals
  • Power of Attorney
  • Wills
SP Law incorporating Martin Adams & McColl Ltd
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I read Law at the University of Birmingham and graduated with an honours degree in 2012 before completing the Graduate Diploma in Legal Practice at the University of Law in Birmingham in 2013.

I am a solicitor specialising in Commercial Property and Private Client law. I also assist the Company law department at the firm ranging from share sales and acquisitions to general corporate advice.

I am a  passionate person who enjoys acting for clients in achieving their goals, navigating around pitfalls and managing prevailing circumstances to ensure that clear and succinct legal advice assists them in their objectives whilst being cost-effective and efficient.

 

Previous Employment

SP Law incorporating Martin Adams and McColl2014 - 2016

Trainee Solicitor - Private Client, Residential & Commercial Property & Company

SP Law incorporating Martin Adams & McColl Ltd2013 - 2014

Paralegal - Private Client & Company

Experience

My legal career began at SP Law inc. Martin Adams & McColl in November 2013 as a paralegal within the Private Client department before I undertook my training contract the following year. I qualified as a Solicitor in November 2016. During my training contract I gained experience in a broad range of areas including Wills, Probate, Administation of Estates and Lasting Powers of Attorney. I also gained experience in company share sales and acquisitions and commercial property transactions. I am also experienced in dealing with residential conveyancing matters as part of the administration of an estate.

Education

University of Birmingham

University

2009 - 2012

LL.B

University of Law

University

2012 - 2013

Legal Practice Course - Commercial and Private

Testimonials

Client Testimonial

I would also like to pass on my gratitude for the support and rapid service that was provided, I'm very pleased we were able to progress at the pace we did, that you were able to execute even though I was out of the country and that you anticipated the issues that may arise before they did giving me valuable thinking and preparation time. I was very happy with the service provided and I hope to use your firm again.

 

A client

 

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Press Cuttings

Student Journal of Law

Judicial decision-making would be better if judges were more truthful about their reasons for particular decisions, even if those reasons are extra-legal

Bhurhan Uddin

 

Introduction

Judges when writing their judgments apply and analyse numerous sources of law and at times differentiate between them. They undergo an examination of the relevant legal principles and binding authorities in relation to the particular case. The doctrine of precedent requires courts to follow previous decisions which were based on similar facts and legal issues that are currently before the court. The outcome of this examination is known as theratio decidendi, which is the reasoning the judges provide for their decision. The opinion of the judges accompanying the ratio is termed the obiter dicta, which unlike the ratio is not binding on lower courts. The judgement expresses the deductive mind of the court, it informs the parties and lawyers how the court decided the particular case on its facts. Judges often import their own views of the case which may at times slightly alter the legal position or seldom not. Adjudication and the approach judges use to arrive at their decisions has proven to be an interesting topic of discussion in the academic field. This being so, many prominent legal practitioners have attempted to explain how judges adjudicate, what methods they adopt, what influences them and most importantly whether they incorporate extra-legal reasons into their judgements.

This essay shall examine how judges construct their judgments; firstly this will entail an insight into the common methods judges use in writing them. Secondly the essay will analyse what influences judges and whether these influences would lead to improved decision making. Lastly by tackling the question square on this essay shall consider whether or not judges should adopt extra legal reasons for the administration of legal justice. Throughout this essay an emphasis will be made on whether judicial decision making will be improved by judges being more honest even if such honesty may at times require non-legal reasons. Furthermore the essay will attempt to appreciate the proposition that it will improve judicial decision making whilst simultaneously considering that it may not.

Before engaging in these discussions it may be useful to the reader to undertake an insight into adjudication in general, since it may help to understand the topic of discussion in the wider sense before undergoing a detailed examination. After a consideration of all the factors and constraints in current judicial decision making it does not appear that it can be improved by judges being more truthful or by adopting extra-legal reasons.

Adjudication

The role of the judge is to resolve disputes between two parties, each party believing that they have a sufficient argument to succeed before the court. The judge is therefore in a position to look at the situation in a ‘rational way’[1]; this method of thinking must be according to ‘rules, principles or standards’.[2] Judge Posner has expressed his utmost respect for ‘practical reason’[3], it appears that adjudication has centred on this old-age principle of rational thinking and not ad-hoc problem solving. Jerome Frank mentions that the conventional view of judges has been that they do not ‘make or change the law but [to] apply it’.[4]  Accompanying this is the belief, prominent amongst both lawyers and non-lawyers, that judges simply administer the law where necessary and so merely enacting the intentions of Parliament. Frank considers this mechanistic belief as mistaken and that judges ‘do make and change law’.[5] This mechanistic argument is to be further challenged in this essay. Roscoe Pound emphasises the notion of justice in the administration of the law, he places importance on enacting ‘full’,[6] ‘equal’[7] and ‘exact justice’[8] namely that judgements should fully resolve the dispute, that similar legal disputes be dealt with by similar equal methods and finally that justice should be proportionate. This rather procedural explanation of how judges decide cases based on precedent and established rules cannot be a true depiction of how courts function however. Levi identifies that though the doctrine of precedent creates uniformity amongst like cases, changes in the rules is part and parcel of the ‘indispensable dynamic quality of law’.[9] Allen mentions that decisions that have been confirmed over a number of years have at time ‘reverse[d] a rule of legislation’[10], which appears to explain that no rule of law is set in stone. It would be considered incorrect if lawyers were to think that the courts always acted in such a mechanical way and do not occasionally adopt differing methods of reasoning to come to their decisions. By extension then, this proposition must accommodate the idea that judges are able to be more truthful in their judgements steering away from arcane principles that appear no longer relevant in the changing tides of society. In doing so they may be forced to adopt non-legal reasons to arrive to their decision in order to attach a convincing ‘legal’ justification or ratio so that it has value before the legal world.         

On the other side of the argument, criticisms of commonly held perceptions of adjudication have been prevalent among legal authors. Frank argues that the idea that the law is predictable is an ‘illusion’,[11] which centres on ‘the childish desire to have a fixed father-controlled universe, free of chance and error’.[12] Gray explains that when judges make law it is essential that the people believe ‘that the rules according to which the judges decide cases had a previous existence’.[13] This form of institutional deception provides an explanation that the courts are far from a well-oiled machine, free from being innovative and creative. By extension therefore, judges are forced to adjust the law and in doing so they may make mistakes along the way. Decision making is thus far from ideal. Where the law is unclear the court may undertake non-legal processes to construct arguments and that the justification that follows is a form of persuasion and not the usual form of logical deduction.[14] 

Since judges are merely human and prone to making mistakes, should they be truthful in their decisions by asking themselves what they consider to be the ‘correct’ approach and in doing so adopt extra-legal concepts to the fore, in order to mitigate these flaws? This question will form the basis of this essay.

Methodologies behind Judicial Decision Making

In order to understand whether judges would be better at making decisions if they were more truthful, it is essential that an examination of the manner in which they decide cases is undertaken. The first two schools of thought under consideration are the deductivist and inductivist. The deductivist school explains that judges look at the dispute in a case and reduce it down to a syllogistic argument whereby there is an application of deductive logic to the facts before them.[15] The legal rules that apply to this situation are ‘fixed and certain’;[16]  from the ‘general to the particular’[17] and so the judge does not require much additional assistance to arrive to his decision. It can be argued that this is not the best manner in which a judge should adjudicate since he is restrained by the legal principles before him. This is because there appears to be little room for him to manoeuvre so it begs the question what a judge would do where there is clear injustice to one party or where the law appears inept to provide an adequate resolution. An apparent flaw in a syllogistic argument is that it mechanically applies the law to the facts without due regard to any contributing characteristics. Neither can it be said that this school is capable of shifting with the social and political changes in society.

 The inductivist model alternatively operates from a consideration of the ‘particular to the general’[18], it does not consider the rule as being naturally applicable to the case it applies to. Rather a judge must induce the decision from an inquiry into the rule based on the facts. The inductivist theory provides a judge more room to manoeuvre in that he is permitted to work out what was meant by a particular piece of legislation or a previous authority. Evidently however it appears that neither school is completely ideal to judicial decision making. In both cases a judge may feel that the prescribed route is not capable of administering full justice (in the Roscoe Pound sense of the term) and may conclude that a remedy lies elsewhere. Consequently a judge may be interested in a more honest approach, claiming that the remedy be justified on public policy grounds or in recognition of a changing movement in society. For example much of the law of equity and trusts in relation to the matrimonial home was anachronistic which failed to protect women’s rights in the home. Lord Denning’s introduction of the ‘new model’ constructive trust broke the chains of the patriarchal nature of the law in this respect. Had judges been constrained by the two schools they would not have been able to administer justice to women who did not have their names registered in the matrimonial home, but had contributed to its functioning. On the other hand we must not ignore the merits of the deductive approach to decision making, which has its merits in the manner it consistently applies to the law in ‘like’ situations, adhering to the doctrine of stare decisis. This both generates obedience to precedent and provides much needed predictability in the law and for lawyers who would want to know how a similar case will be decided. If judges were to rely on their own notions of justice, and at time incorporating their own non-legal reasons there is a risk of decision making being erratic. Dillon LJ noted that judges do not administer ‘palm tree’[19] justice, referring to the application of constructive trusts.

The doctrine of precedent is implemented consistently in the courts of law. The idea behind the doctrine is that where the law is settled, judges should follow it. It provides that ‘like’ cases are scrutinised by the same rules and principles uniformly. During the early years of the Court of Chancery the Lord Chancellor resolved disputes between parties by looking at them individually, his approach was judge them to his own discretion and so it was generally ad-hoc. There was little consistency between cases that were similar with no regard for precedent or the development of legal principles. It cannot be argued that such an approach will ever improve judicial decision making. However notwithstanding the support for the doctrine of precedent, there is argument against its frequent adoption. Some regard a departure from precedent as necessary in different areas of the law arguing that an Act of Parliament should settle the matter. At times a move away from precedent is expressed by the Law Commission in its proposals. If such a proposition can be appreciated should judges be more truthful when writing their judgements steering away from precedent? They may, in being truthful, steer toward the precedent but from a different angle justified by a different extra-legal reason. It has been said that a judge should not be bound to an erroneous decision furthering it to ‘corrupt the judgment of other magistrates’.[20] Judicial decision making would be improved if a judge could import extra-legal reason to overturn an erroneous decision, such as on the grounds of public safety or on commercial reasons, say to protect traders. Frank boasts of the way Legal Realists have the luxury of ‘disregarding what his predecessors said’[21]and to adjudicate as if they were free from the rational thinking of the judges that were from a different time with different facts before them. Without proving to be contradictory to the points made above, how then should judges depart from precedent and not at the same time decide cases erratically? This can be achieved from an understanding that the language of the former judge greatly influences a later judge. The former judge’s dictum should not be considered decisive to the present case, particularly where the decision is not ideal and is anachronistic. In these situations a judge should be allowed to depart from the authority and import extra-legal reasons to justify the departure.  A judge may justify his departure by referring to the fact that it is the practice of another jurisdiction in the commonwealth, in such a case it can be said that the judge has been more truthful for why he has come to his decision and in doing so improved the law. On the other hand it can be argued that a judge should not be allowed to depart from authority or to invent the law as they go along. This remains true even where a statute may be considered immoral.[22] Whether or not it originates from another jurisdiction does not justify departure from precedent, consistency is key to the functioning of the court system even when it is inadequate or fails to administer absolute justice.

A final method judges may arrive to a decision is in the manner they interpret Acts of Parliament. This can be either through a literal or a liberal approach. The literal approach would involve an exercise of ‘interpreting grammar, based on a strict distinction between the legislative and the interpretative function’.[23] The liberal approach would solely focus on the legislative purpose of the statute. Judicial decision making would, in my opinion, be better if judges took a more pragmatic approach to statute. Adherence to the literal meaning of statute can lead to confusion and over time lead to ‘an accumulation of outmoded rules’[24]whereas a more liberal approach means each statute can be applied to the conditions of society and not when the statute was enacted. A statute may be ambiguous and so a judge writing in his judgement assuming the intentions of Parliament can better improve the administration of justice. On the other hand such an approach may grant too much discretion to judges that will vary from judge to judge. Statutory interpretation should therefore be construed on a medium between a literal and liberal approach so that the outcome is in line with established principles and Parliament’s intentions. Judges should be allowed to consult Hansard if required, rather than to adopt their own view of the statute. This should be the case regardless if their reason is extra-legal and it cannot be argued that if judges were more truthful that this will lead to improved judicial decision making.  

Non –Legal Influences upon Judicial Decision Making

In order to agree or disagree with the proposition that judicial decision making would be better if judges were more truthful about their reasoning behind a case, even where extra-legal reasons are given, it is essential that we consider what influences them to make these decisions in the first place. Again we have two major schools of thought that attempt to explain what influences a judge in his decision making. They are the ‘sociological’ and ‘idiosyncratic’ explanations.[25] The sociological school represented by Llewellyn, Cohen and Oliphant argues that a judge is the subject of his ‘social background’[26] that certain ‘social forces’[27] cause the judge to decide the way he does, this originates from the education he received, to his social connections and environment.[28] Decision making can be bettered if judges were to rely on their own social outlook when adjudicating on the bench. Since judges were once advocates and are private citizens of the State when not acting as judges they too are affected by the decisions they make. Each time they modify a principle in the law of crime they are subject to the new principle as a private citizen. Members of the bench are considered the most eminent scholars and advocates associated with the Bar, they are legal experts and it can be argued are most suitable in making revolutionary changes to the law. Why then should they not be able to incorporate extra-legal reasons such as their own political and social outlook to better explain why they have modified an existing rule since they know too well where deficiencies in the law reside. This however is dependent upon their social outlook being free from prejudice and bias, and if they can remain impartial there is no reason why judges cannot be more truthful in justifying the reason they have decided in the way they have. However this may not be true in its entirety. The ‘sociological’ school of thought further explains that much of how a judge reacts to a case is based on a judge’s psychology. There exist unconscious forces that cause a judge to behave as he does and that he reacts to certain stimuli, occasionally originating from his ‘infant experiences’.[29] That ‘a certain facial twitch or cough’[30] may trigger a past memory and that a judge may show sympathy to ‘blonde women’[31] for instance. Consequently this may profoundly alter the way he conducts himself in the case and thus affecting his decision making in the end. Schroeder goes as far as saying that every word in a judge’s decision is ‘expressive of an unconscious...personal motive in the judge’.[32] If this is the case then the sociological school does not support the argument that judges should be more truthful in their decision making. This is because if a judge is a subject of unconscious motivations this raises the question how impartial a judge can be when adjudicating. If a judge holds prejudicial views of a section of society, or is influenced by some issues originating in his childhood whilst simultaneously there being no constraints on him incorporating his own opinions into the judgement, this potentially could create serious miscarriages of justice. The only psychology that a judge should consider in his judgement, is the psychology of Parliament, a judge should ask himself what was the aim in passing such legislation, to what was Parliament reacting to and why.  Only then can judicial decision making be bettered, this then affords a rejection of the use of extra-legal reasons.  

The idiosyncratic school of thought recognises that the personality of the judge largely affected the manner in which he constructed his decision.[33] Frank who was largely influenced by Freudian psychoanalysis argued that the ‘personality of the judge is the pivotal factor in law administration’.[34] If judges were allowed to be more truthful over the reasons they used to arrive at their decision and this was based on their personality, then how much consistency amongst ‘like’ cases could be guaranteed? Each judge’s personality differs from the other, if they could incorporate their personalities freely into constructing their judgements, then there would be little predictable pattern in the judgements so that it could be said that the ‘law may vary with the personality of the judge’.[35] On the other hand however, Lord Denning who was regarded as being ‘controversial’[36]  was known famously for supporting deserted wives and so established the ‘deserted wife’s equity’[37] granting more rights to women in the matrimonial home. This was largely due to his personality as a ‘people’s judge’.[38]  This corresponds well with the activity of the Warren Court named after its leading judge, Chief Justice Earl Warren; the court was famous for its ‘egalitarian[39]’ approach to justice, a philosophy originating from the personality of its leading judge.  

A further influence that affects a judge’s decision making is politics. An American article observed that an ‘excision of politics from the judicial mind is impossible’[40] and another stating that ‘[J]udicial decisions are political decisions’.[41]The critical legal studies movement considered that judge’s decisions ‘reflect[ed] their political orientations’.[42]Would judicial decision making be better if judges incorporated politics into their judgement as an extra-legal tool? It cannot be argued that judicial decision making will be improved if political motives were evident in decisions. Politics as an extra-legal reason would infringe the principle of impartiality - a judge must show at all times, not to be swayed by his political views. If a judge could refer to his political outlook in a case this would discriminate against the parties in the disputes who may be affiliated to an alternative mode of thinking. A judge who possesses ‘right-wing’ views may not be able to effectively implement human rights to those seeking protection under the Human Rights Act 1998, as an example. Furthermore politics is a field that should be kept within the walls of Parliament. It is a function of the legislature to deal with political issues and if judges made political decisions, there shall be an infringement of the separation of powers and a usurpation of Westminster’s primary function.

Encumbrances on Judicial Decision Making

A consideration of how other influences play a role in affecting judicial decision making may prove useful. It may indicate whether extra-legal reasons justifying judicial decisions may not be necessary if these influences already accommodate the judge’s ratio decidendi, so that no further explanation is required. Alan Paterson has interviewed Law Lords and has examined their extra-judicial speeches[43]; he argues that ‘the Bar played an extremely important part in the interactive process culminating in judicial decision making’.[44] He contends that judges are influenced by other Law Lords in consultation that they would occasionally ‘gather in the corridor...to compare impressions and talk things through’[45], a clear example of how judges are influenced by their peers.  This may prove true when judges have to deal with questions of great national importance, such as questions relating to the UK constitution and more frequently human rights. An American judge, Jeffrey Sutton mentioned how he would inquire whether Judge Posner had written on a certain topic[46]since he would hold his opinions very highly. Judges therefore are heavily influenced by the judiciary as a collective institute and at times they work together in order to come to a legal resolution of the case before them. Furthermore judges can, when writing extra-judicially or in informal conversations with their peers, express their true opinions on particular legal issues. When writing extra-judicially they are not constrained by legislation or by precedent and therefore can use extra-legal reasons to explain their stance on an issue. It cannot be denied then that these extra-judicial opinions and interactions between judges do not play a decisive role when a judge writes his judgement. He may be swayed by an opinion of a former practising judge or may feel that the law is moving in a new direction, supported by leading legal academics. It follows then that if these sources have been based on extra-legal material or justifications they can then find their way into the courtroom and into the law reports. Judicial decision making can be improved if judges do consult their peers more and read what judges have written on certain topics to help guide the law into a new era. Indeed, sometimes this may prove revolutionary.

 Conversely if judges embark on revolutionising the law in a certain field, critics may argue that they are overstepping their position regardless of whether they have gathered the opinion from a leading judge or not. They may contend that extra-judicial literature should not be used as a basis for subsequent reasoning in the courtroom, that they should stay from where they originate, outside the courts. Additionally whether the Bar plays a good influence on judicial decision making cannot be properly identified in the empirical sense and so the argument against it may prove as strong.  

Frank refers to how a judge’s ‘hunch’[47] and ‘habits’[48] shape his decisions. Both of these influences are not in any way legal ‘tools’ that a judge should follow as standard court procedure. The approach a judge adopts during a court case, which may over time become second nature, can fundamentally affects the way he is likely to decide the case before him. The habitual behaviour of a judge should not be based on these non-legal ‘tools’. Since a judge can ‘treat certain facts as material or immaterial’[49] and as Lord Wright says ‘instinctively [go] to the heart of the problem’[50] a judge would have to justify how his particular approach is not purely discretionary but based on legal principles. It does not appear therefore that a judge can adopt extra-legal reasons to say that a certain party has satisfied a particular threshold or doctrine and ignore judicial procedure out of habitual behaviour and intuitiveness. This is because it does not appear viable that a judge can justify his decision based on a ‘hunch’ supported by an extra-legal reason, such as protection of the environment. It does not guarantee judicial consistency or impartiality where a judge must be free from all bias. To what extent would the judges ‘hunch’ be regulated by rational thinking and bias? If his habit is to support women in marital disputes based on prejudices  or ‘hunches’ developed over the years then there is likely to be a violation of the right to a fair trial guaranteed by the Human Rights Act 1998.  This is even more necessary where the custom of the court it said to determine the plaintiff’s remedy[51], judicial decisions should not be mechanical but dealt with on a case to case basis, turning to the particular facts of the case.   

Should judges be more truthful even adopting extra-legal reasons?  

Since a decision of the court is considered the final word on the matter, settling a dispute between the parties, what goes into that decision is therefore of utmost importance. At times however, a court may justify a move into a new direction or the creation of a doctrine based on reasons that are neither strictly legal nor originating from the consent of Parliament. These reasons have been described as extra or non-legal reasons. Lord Denning stated in an interview conducted by Paterson that ‘I go by policy and social considerations’[52], Paterson later notes that ten out of eleven Law Lords considered the social repercussions of their decisions. [53]  Lord Atkin’s ‘neighbour principle’ from the famous tort case Donoghue v. Stevenson[54] was based purely on public-social considerations.  Public policy is an extra-legal reason that generally allows judges to justify why they have created something completely new and in some cases on vague authorities. Public policy arguments do improve judicial decision making because an essential function of the court is to ensure that citizens of the State have their rights protected. They can achieve this by altering the law to protect citizens. The aforementioned case paved the way so that citizens could sue the manufacturer of a product for being negligent during the creation of their produce. The court here created a right and a principle, not from any statutory provision, but from extra-legal reasoning. This can be celebrated as an improvement in the law of tort and judicial decision making. This is therefore an example of how the ‘courts can...adjust rights and liabilities in accordance with changing canons of public policy’[55], a much needed mechanism in law.

What about society? Paterson believes that judicial decision making should be a ‘social process’[56] taking into consideration the way people interact with one another whilst being influenced by the perceptions of their role and the role of others in society.[57] Ronald Dworkin mentions in his work Taking Rights Seriously (1977) that judges should consider ‘community morality’[58] when adjudicating. This is a clear example of how judges take society as an extra-legal factor into consideration. Judicial decision making would be better if judges saw their task as manifesting into the community’s sense of righteousness and serving the needs of society.[59]On the other hand the natural question that follows is how can we trust judges that when they consider social factors in their decision making that they can best represent society as a whole and will not follow their own perception of how society should function.  As an undemocratically elected body of white middle-class men, how fairly can they represent the majority of society? 

Uses of extra-legal methods in judicial decision making have been met with both positive and negative reaction. Eric Miller suggests that judges when faced with a problem not curable by legal rules, can engage in a consideration of extra-legal reasons in order to ‘break the deadlock’[60] which Raz describes as ‘reasoning according to the law’[61], which facilitates ‘clos[ing] the gap’[62] between the problem and the decision. The use of extra-legal norms has been addressed directly in two transatlantic cases, Planned Parenthood v Casey[63] and Cruzan v Director Missouri Department of Health.[64] The former confirmed the decision of the famous case Roe v Wade[65] that abortion cannot be prohibited in the first trimester of foetal development, the latter establishing that those of competent mental capacity may refuse unwanted medical treatment, even when the refusal of medical treatment may result in death.[66] In both cases the Supreme Court had to rely ‘on an extra-legal norm’[67] to oppose the principles established in those cases to be extended and subsequently allowing citizens the right to die. Whereas passive euthanasia can be achieved under Cruzan[68], active euthanasia had been denied unequivocally by the highest appellate court in the United States. The reasoning behind the decision goes beyond the restraints of precedent or public policy. To a larger extent it also transcends above a judge’s own notion of right and wrong and so his own level of truthfulness in this case would be considered immaterial. It was in essence a question of enormous political, social and theological importance. It was a question concerning the rights of individuals to determine the manner of their deaths against the interests of the State which sought to avoid the authorisation of supervised suicide. Modak-Truran argues that the members of the Supreme Court had to rely on ‘a particular kind of extra-legal norm a comprehensive or religious conviction about authentic human existence’.[69] Since it can be argued that the judges had successfully struck a balance between two competing interests between the citizen and the State, the use of extra-legal reasons in their decisions proved to be beneficial to decision making as a whole. However a criticism of this approach has to be noted. Modak-Truran in his article notes that the outcome may be different if the judge’s conviction upon an extra legal norm varied, that two judges may come to opposing conclusions.[70]  Dworkin testifies that if there is a change in principle it cannot be based on a ‘judge’s own preference amongst a sea of respectable extra-legal standards’[71] because he argues, that if a judge could choose freely it cannot be said a rule was binding.[72] It therefore appears that the use of extra-legal norms in these questions should be either left to Parliament to resolve through the passing of statutes or that judges should strive to justify their decisions upon existing binding authorities.    

Conclusion: Can judicial decision making be improved?  

Oliver Wendell Holmes’s most famous words were that ‘[T]he life of the law has not been logic, it has been experience’.[73] This may offer a better explanation of whether judges can really improve their decision making insofar as the law dictates. If the law has developed from experience, correcting its mistakes as it goes along, then to what extent can it be said that the adoption of extra-legal reasons will significantly improve decision making?

In order to answer this question one must begin by looking at one of the functions of the court, the principle of nemo iudex in causa sua,[74]  that is to prevent bias. The adoption of extra-legal reasons by judges may allow them to deviate from legal procedures and settled law. If this is based upon some form of bias or any incorrect extra-legal reason then the law will move in an undesirable direction. Adjudication should be regulated by this principle in order to prevent judges bringing in their personal biases into the law. The law cannot learn from its mistakes if each judge had the discretion to justify their decision on reasons not regulated by the law itself, but by the consciences of the judges themselves. Holmes once stated that ‘I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinion in law’[75], this reiterates the point further that opinions should not be embedded in the law. 

A few additional issues shall be considered here. If judges were given the freedom of discretion in being more truthful and so forth, to what extent does one suggest they can possess these powers? Furthermore if judges were given a licence to incorporate extra-legal concepts into their decisions, should Parliament be given the power to regulate their use? If the answer to this question is in the affirmative, would it then be possible for judges to be removed from the bench for misuse of powers? If this is so, it cannot be said that judges would have security of tenure nor complete independence, which we should endeavour they have. An endemic of insecurity would flood the minds of the judges anxious to justify their decisions with reasons that they would hope will not arose the suspicions of Parliament. Judges may be exposed to criticisms from individuals who do not agree in the adoption of a particular extra-legal reason. For example an Atheist may not agree on a judge’s religious-based response to a dispute, justifying the decision on the basis of some universal and fundamental principle common to all religions. Or in the case of an anti-vivisectionist who may not agree with a ruling based on public policy, namely for the preservation of human life, this alone raises ethical questions. Judges may in trying to reach superior judicial positions may seek to impress Parliament with their progressive extra legal reasoning, this in turn compromising the principle of impartiality. This cannot be seen as a progressive step in judicial decision making.   

How can judicial decision making be improved then? Wasserstorm in his work The Judicial Decision [1961] believes that judges should adjudicate like ‘rule-utilitarians’.[76] Frank argues that a judge when constrained by rules yet is confounded by what he considers to be fair in the case will ‘combine’ both mediums to come to his decision.[77] This can be considered an appropriate approach because it relates to another function of the court, namely the administration of justice. The administration of justice should be based upon what is fair on the facts and thus to avoid deviation from settled law, the judge should manoeuvre the law in a way that is a compromise between granting a fair result to the wronged party whilst honouring the law as it is. There are few examples of where this approach may not be possible because the law is outdated or will not grant absolute justice. In only these ‘hard’ cases (to borrow the Dworkian term) it is believed in my opinion that a judge be given the freedom to be more truthful in his reasoning as to why he considers a change in the law is paramount. One final challenge to the argument whether decision making could be improved is the argument against increased judicial discretion that would arise as a result. Lord Camden maintained that discretion of a judge ‘is the law of tyrants; it is always unknown...depen[dent] on temper and passion’[78], one judge’s discretion may prove just in one case whereas in another it may not. This will create both uncertainty in the law and it cannot be argued that it will be regulated by any medium other than the judge’s mind which at times may be ruled by passion rather than legal reason. This may prove highly undesirable for the law. In all it cannot be argued that judicial decision making can be improved by judges being more truthful to themselves nor by incorporating extra-legal reasons. Therefore it is proposed that the continued practice of stare decisis by judges and pragmatic interpretations of statute together will prove most beneficial to the judiciary in its decision.

[1] MDA Freeman, Introduction to Jurisprudence (8th Edition Sweet & Maxwell) 1533

[2] Ibid 1533

[3] S J Burton, Judge Posner’s Jurisprudence of Skepticism (Hein Online 87 Mich. L. Rev 710 1988-1989) 710

[4] J Frank, Law & Modern Mind (Transaction Publishers London UK) 35

[5] Ibid 36

[6] B Beyleveld & R Browsword, Law as a Moral Judgment, (Sweet & Maxwell 1986)  383

[7] Ibid 383

[8] Ibid 383

[9] (n 1) 1582

[10] Sir C K Allen, Law in the Making (7th Edition Oxford Clarendon Press 1964) 181

[11] (n 4) 37

[12] (n 4) 37

[13] (n 4) 40

[14] B S Jackson, Making Sense in Jurisprudence(Deborah Charles Publications 1996) 234

[15] (n 10) 245

[16] (n 10) 161

[17] R Cross & JW Harris, Precedent in English Law (Clarendon Press Oxford 1991) 191

[18] (n 10) 162

[19] Springette v Defoe (1992) 2 FLR 388

[20] (n 10) 173

[21] (n 17) 50

[22] (n 6) 401

[23] W Friedmann, Law in a Changing Society, (2nd Edition Stevens & Sons Ltd London 1972) 56

[24] (n 1) 1537

[25] B Leiter, American Legal Realism (University of Texas School of Law, Public Law and Legal Theory Research Paper no 042 2002) 9

[26] J Frank, Courts on Trial – Myth and Reality in American Justice (Princeton University Press 1950) 147

[27] (n 25) 9

[28] (n 26)148

[29] (n 26) 152

[30] (n 26) 151

[31] (n 26) 151

[32] (n 4) 122

[33] (n 25) 9

[34] (n 25)9

[35] (n 4) 120

[36] Clare Dyer, Lord Denning, Controversial ‘People’s Judge’ dies aged 100, The Guardian (March 6 1999)< http://www.guardian.co.uk/uk/1999/mar/06/claredyer1> accessed 29th April 2011

[37] Ibid

[38]Ibid

[39] (n 23) 70

[40] B Tamanaha, Understanding Legal Realism (Legal Studies Research Paper Series 08-0133 2008)  20

[41] J Penner, Introduction to Jurisprudence and Legal Theory (Oxford University Press 2002) 367

[42] Ibid 394

[43] (n 14) 260

[44] (n 14) 261

[45] (n 14) 261

[46] (n 1) 860

[47] (n 14) 235

[48] (n 4) 119

[49] (n 17) 66

[50] (n 17) 51

[51] (n 10) 174

[52] (n 14) 270

[53] (n 14) 270

[54] [1932] AC 562

[55] (n 23) 74

[56] (n 14) 261

[57] (n 14) 261

[58] (n 14) 268

[59] (n 40) 35

[60] E J Miller, Judicial Preference, (Selected Works 2007) 2

[61] Ibid 2

[62] (n 60) 2

[63] 505 US 833 [1992]

[64] 497 US 261 [1990]

[65]410 U.S. 113 (1973)

[66] MCM Truran, Reenchanting the Law: The Religious Dimension of Judicial Decision Making (Catholic University Law Review Vol. 53:709) 755

[67] Ibid 755

[68] 497 US 261 [1990]

[69] (n 66) 755

[70] (n 66) 755

[71] (n 41) 346

[72] (n 41) 346

[73] (n 40) 21

[74] (n 6) 393

[75] W Friedmann, Legal Theory (5th Edition Stevens and Sons Ltd 1967) 437

[76] (n 6) 383

[77] (n 4) 145

[78] (n 4) 147


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