The question for the court in McLoughlin was how to adjust the perimeters of responsibility in a reasonable way. What is Scarman trying to say? He was trying to say that in such situations the judges are not well equipped to deal with drawing the line as to deciding the policy issue. These assessments belong to Parliament and the legislature. Parliament is institutionally set up to strike these balances in policy terms. Courts are not equipped to deal with in depth inquiry and are institutionally limited to do this kind of thing. They are not elected.
Parliament is. Judges are best to deal with disputes. Judges are good at delving into the minds of the legislature and good at translating that into particular cases before them. So the approach leading to McLoughlin and Lord Scarman is that it is not right for the courts to shape the remedy. That is for the legislature. If there is a worry about the need to temper the scope of nervous shock, until the legislature does this, all the courts can do is keep on giving relief to deserving cases and treat like cases alike as a matter of principle.
Where we have to cut down these cases in the name of economic considerations then we leave this to the legislature. Also judges do not create the law, they just modify it through their use of principle and this is propounded by Dworkin. He belives that judges do not make the law but merely apply the facts of each case and modify it. The role of making the law is left to the legislature or Parliament. It would be wrong for judges to make the law. Because it is not their place to do so. Judges must be guided by principles in their decisions.
As such they are distinguished from policies which identify collective goals2. In 'hard cases'3, such as McLoughlin, a judge's decision should be based on legal principles and not policy. And this is what Lord Scarman was trying to say when he said that the policy issue where to draw the line is not justiciable. Meaning that it is not lawful for judges to draw the line as to who should be able to succeed in their claim. Criticisms of Dworkin's theory which support the opinion of Lord Edmund-Davies
However, criticisms of the views of Dworkin view lead us to support the opinion of Lord Edmund-Davies that the Lord Scarman's proposition is novel as it is startling. One of the main criticisms is that Dworkin's approach is too optimistic in that it disregards the possibility that judges are often goal based in their decisions and their way of thinking and that it is not always feasible for judges to refrain from making decisions of a policy influenced nature. This is a fact that Dworkin himself realised.
Essentially judges do have their own political opinions and are not just dummies and don't just regurgitate the law. It is easy for judges to be swayed by their own political thinking and that Although bell's views are not a criticism or attack on dworkin they can lead us to support the view of Edmund bridge who cearly was of the opinion the judges should be able to decide the policy issue/that its justiciable to draw the line . impartiality is of judges in this sense is not always possible.
If judges followed Dworkin's belief to the letter, the law would be slow to develop and the Tendency to hide/disguise the reasons of their decisions behind common sense rather than admit it is based on policy. (Bell pg 36). Common sense arguments amount to policy decisions. The fact that cases do not always reveal uniformity in their decisions it is indicative of the Parliament is often slow to adapt and meet the increasing changes in society which is why judiciary needs This argument can be found with Hart Hart's criticisms Greenwalt's criticisms (pg294? )
1 2 All ER 298 2 Jurisprudence: Text and Commentary, H, Davies and D, Holdcroft, 1st edition, 1991, pp. 94 3 In terms of Dworkin's theory, this refers to cases in which there is a larger than normal degree of uncertainty as to the outcome, owing to the fact that there is no pre-existing rule governing the relevant situation, or where a pre-existing rule appears likely to produce unsatisfactory results. Hard cases are ones in which it is hard for judges to decide which of two conflicting principles should prevail. Jurisprudence, J. G Riddall, 2nd edition, 2002, pp. 88-89