One of the most problematic aspects of the policy-making process lies in determining how much room should be allowed for party-political considerations. Probably the best known and most controversial cases is Bromley London Borough Council v. Greater London Council20 in which the policy of elected local government councillors fell to be considered. One of the issues was the policy-making process that had produced the "fares fair" policy.
The Court of appeal held that it was illegal to subsidise fares from rates, and so, because the increase in the subsidy payable by ratepayers, the GLC was in breach of the fiduciary duty which it owned to the London ratepayers. This time the ruling was not welcomed by everyone, the popular press was all over the judges, asking who elected them. An important element of Dworkin's premises is the respect for the democratic process and the requirement for a democratic mandate in order to enter policy decisions.
Another contention in this regard is that any police decision on the part of the judge would since it was not drawn from already existing statements about rights be retrospective law making on his part and therefore unfair to the disputants. Judicial restraint As we have seen above, the courts sometimes go too far in their law making. At those times judges forget that they are not the legislative (they don't have the means), and that the (local-) government is!
Judges are not democratically elected and should therefore only intervene with a policy when it fulfils the criteria for judicial review and the policy is not largely a value judgement. Several reasons can be given against the reopening of policy issues, the most important ones are that the judges don't have the means to review the policy, that policy issues should be examined in a formal, quasi-inquisitorial forum, or conversely that policy issues are better aired informally, in an advisory committee, or that it is too time-consuming (i. e. on the end, judges are there to arrange disputes).
The Smith-case21 In this (also famous) case, the four applicants had been serving member of the armed forces until they had been administratively discharged because they had a homosexual orientation contrary to the Ministry's policy. In their application for judicial review they claimed the policy was irrational, contrary to Art. 8 of the European Convention on Human Rights and contrary to Art. 2 of the Equal Treatment Directive. The Ministry's policy was (therefore) a controversial one.
This time the Court of Appeal held that the policy was not irrational, although Simon Brown LJ said that 'so far as this country's international obligations are concerned, the days of this policy are numbered'. The judges did not dare to intervene this time, mainly because the Defence Committee did not recommend any changes to current policy in its 1995/1996 rapport22. The minister's decision was clear, the court couldn't interpret it 'differently'. Next time they may change the law on this point, but for now the judiciary recognised the legislative supremacy of Parliament.
What does Ronald Dworkin say? As said in the introduction, I will focus mainly on R. M. Dworkin, on his two books Taking Rights Seriously and Law's Empire including his criticism on H. L. A. Hart's points of view. Taking Rights Seriously In Taking Rights Seriously, Dworkin rejects the notion, which he attributes to positivists, that law consists of rules, and that when rules run out in a particular case, the judge has discretion. Rather, a judge is bound by principles. These principles are developed from previous institutional material, those based on principle rights can be used by the judges.
These principles provide answers to all legal cases; the reasons never run out. This means a judge has no (strong) discretion to make law, i. e. no freedom to take decisions not covered by the available institutional material. Dworkin summarises positivism in three 'ideas': _ Laws are rules, identified by a test of pedigree and not content. _ Outside rules, judges are not bound: they have discretion. _ There is only a legal obligation if there is a legal rule. The problem with the positivist theory is, says Dworkin, that they do not include the notion of legal principles.
Dworkin sees more law than the positivist (Hart), everything -in the context of the culture of law- is, if better arguable than competitive opinions, law. The legal system, he claims, provides an authoritative answer to every case, even when that case is not covered by a rule. Dworkin seemed to suggest that principles could even override rules, by giving an example of an US case23. In that case the rules of succession were not followed because that would have resulted in the murderer of the deceased taking the estate, contrary to the principle that no one can benefit from his own wrong.
We can draw a parallel with the martial rape-case discussed above, were the principles (i. e. rape is always forbidden) were found more important than the law. However, Dworkin now seems to have withdrawn from this position and says that principles only operate outside the rules regulated area. The judge selects the principle by a process of reasoning. Dworkin shows how a judge should come to the right principles in a case, by giving the example of the perfect judge.
In his Hercules-model24, an omnicompetent judge, would take on board the institutional structure and political philosophy of the constitution, the statutes and the common law decisions, and form a total theory giving principles explaining it all. Dworkin distinguishes two characteristics of principles showing that they differ from rules. First, counter-instances do not disprove a principle (although they do disprove a rule), and second, principles have weight. They do not operate in an all-or-nothing fashion, but can be balanced against each other.
He also makes a distinction between principles and policy, judges in hard cases should only apply principles, and not policies. Decisions generated by policy do not require any consistency, whereas those based on principle do require consistency, and give one of the parties to a later dispute a right to have a similar decision made in his case. Two other reasons Dworkin gives for not allowing judge to make the law, is that if the judges had such discretion, the law would be retrospective. If the judges use the principles to 'make' new law, like in the martial rape-case above, that decision is not retrospective25.
Moreover, judges are not elected, and it would therefore be undemocratic to allow them to make law. Law's Empire In Law's Empire, judges should decide their cases in the light of principles of political fairness; substantive justice and procedural due process. In deciding what principle of law fits best, the judge looks at existing decisions. Again, there is always a right answer to every legal question, the only difficulty being in finding it. The right answer must be found in the principles that are, according to Dworkin, existing statements about rights.
The judge must not refer to policy in the sense of statements about goals to be achieved by the legal system, as this is the proper preserve of the legislature. As we have seen above, the fair fares-case was an example how not to judge. Dworkin tries to protect the judiciary from the type of criticism26 they were exposed to after that ruling. Some critics on Dworkin Dworkin claims that his theory explains both that how judges do behave (descriptive) and how they should behave (prescriptive). Prescriptively, his theory might be true, but descriptively probably not.
Judges do not form anything like the complete theory of institutional material. And as perfect humans do not exist, nor do perfect judges. Another problem on Dworkin's theory, is when the rules run out, there are always principles, legitimate reasons to get to the right answer. There is no uncertainty, and therefore judges don't have discretion. I don't believe that, there are still gaps in the law, even when law includes the principles, i. e. 'the law' does not cover everything and it never will. A reason for Dworkin to say that law never runs out, is the 'fact' that judges never say there is no relevant law i. e.
although judges do not frame their decisions in such terms does not mean they are not actually acting in such a way. For example the Ladies Directory-case27, in which it was sure at all that there existed any law on the matter yet the courts created a jurisdiction to safeguard the nation against 'a conspiracy to corrupt public morals'. But even if their decision was based on principles of law, it would be those principles that fitted best by their ruling, i. e. if the court wants to make a particular ruling, it will. Dworkin's judges discover these principles through a process which involves a heavy use of their own political views.
Using 'the principles' can not solve the complaint about retrospectivity, that the parties do not know what law will be applied in their case if the judges make the law. Judges may find different principles important and therefore come to different results… Conclusion I think Dworkin's attempt to show that there is or even should be no judicial discretion ultimately fails. Judges do not engage in the (complex) process of forming an institutional thesis, nor do they limit themselves solely to arguments based on principles not policies. And, probably, nor is there always one right answer to a case.
'The judges who finally decide the case will have been legislating, though they will sincerely, consistently, and rationally believe that they have not. By making a choice determined by their subjective moral judgements for which they honestly but mistakenly claim objective validity, they will have been making law an issue on which there was previously no determinate law, on which they had no antecedent duty to decide one way rather than the other, and on which neither party had a right to a decision in his favour. ' John Mackie28 Judges will be making the law, as long as the legislative is making statutes containing vague norms.
Not much can be done about that, not even when the judges apply the principles of law in their judgements. A strong judiciary, i. e. a judge with discretion, might even be welcome, as the executive and legislative function are being 'under one roof'. A balanced constitution, where the judiciary gives weight against the administration, is a good thing. Bibliography Taking rights seriously – Dworkin, Ronald M London, Duckworth, 1977 Law's empire – Dworkin, Ronald M London, Fontana, 1986 Is Law a System of Rules? – Dworkin, Ronald M In: The Philosophy of Law