In terms of legal theory the case of McLoughlin v O'Brien 1 gave rise to debates surrounding the area of policy and principle in cases, more notably, cases of tort. Like many other cases in tort, this case centred upon the broad head of nervous shock for which the plaintiff sought to claim damages. Lord Scarman in particular was of the Dworkinian persuasion and put forward that judges should be guided by principles as opposed to policy and that policy should be left to the legislature or parliament: '… the distinguishing feature of the common law is… judicial development of principle. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path…
The policy issue where to draw the line is not justiciable… ' However, Lord Edmund-Davies was more open to the possibility of judicial decisions being policy orientated and accordingly said that Lord Scarman's proposition that the policy issue is not justiciable: '… is as novel as it is startling… ' Accordingly it needs to be assessed which of these two opinions are correct in light of legal theory.
Or The analysis of various legal theorem can be used to assess which of these two opinions are correct and to begin with, it is possible to analyse Support of Scarman's opinion using legal theory It can be found that Lord Scarman's opinion is synonymous with the views of Dworkin and this, on the one hand, can lead us to find that Lord Scarman's opinion has more weight and is perhaps the more correct approach. Taking the works of Dworkin as our starting point, he divides judicial impartiality into two parts of policy and principle.
Principle isDworkin identifies the province of the impartiality of the courts while keeping on board the idea that judges do make moral choices and indeed political ones. So here there is the need to reconcile the idea of partiality with the fact that judges do make moral choices when making decisions. How can we make sure they will be impartial in exercising their discretion? The first step is to use Dworkin's theory. He insists that judges must not take initiative in formulating policy. That is to say that they must not establish an independent goal which they feel
The examination of principle and policy as put forward by Dworkin firstly needs to be examined. If we consider Firstly, the distinction between policies and principles need to be highlighted. Policies are essentially oriented by goals and objectives. They are an aim to achieve a particular objective that a society happens to set itself. Policies simply call for the satisfaction of a political goal or to achieve certain projects. For example, a policy can be created with the aim of strengthening the economy of a particular country or tightening access to asylum.
In the case of McLoughlin in particular, the policy considerations were that if the plaintiff was allowed to succeed in her claim, there would be the opening of floodgates and a whole array of cases would be allowed to succeed in the future giving rise to fraudulent claims, increase in insurance which in turn would have consequences on the economy, and cautious practices As opposed to policy, principles carry a demand that like cases be treated alike. Dworkin's view Judges must not be goal based in their approach and they must not seek to make policy or law.
That is for the legislature. Courts have to temper the effect of that legislation. Courts should reach decisions on questions of law or principles. They should not seek to develop the law on grounds of policy. Judges are not well equipped to take on these goal based thinking. They are much better equipped to treat like cases alike. Judges to exercise power of control and restriction over policy making The courts, says Dworkin, in their search for impartiality may not initiate policies but must give effect to policies when they are formulated by the legislature.