AND POLITICS 10
The popular perception of the judicial process is described by David Kairys as government by law, not people, together with the understanding that law is separate from, and superior to, politics, economics, culture and the values and preferences of judges. This perception is based on particular attributes of the decision-making process itself, which Kairys suggests comprises, among other things: the judicial recognition of their subservient role in constitutional theory; their passive role in the operation of the doctrine of precedent; their subordinate role in the determination and interpretation of legislation; and the ‘quasi-scientific, objective nature of legal analysis, and technical expertise of judges and lawyers’ (The Politics of Law: A Progressive Critique (1982)). To the extent that law is generally portrayed as quasi-scientific, the operation of objective, technical and hence supposedly neutral rules, to that degree, the decisions that judges make are accepted as legitimate by the public. It is necessary, therefore, to consider the nature of reasoning in general and the extent to which judges make use of such reasoning, before considering the social location of the judges. It is only on the basis of the nonexistence of distinct and strictly applied principles of legal reasoning that the existence of judicial creativity and the possibility of judicial bias come into consideration.
There is a long-running controversy as to the relationship of law and logic and the actual extent to which legal decisions are the outcome of, and limited by, logical processes. At times, lawyers have sought to reject what is seen as the rigid inflexibility inherent in logical reasoning in favour of flexibility and discretion. As the American Supreme Court Judge, eminent legal writer and proponent of Legal Realism, Oliver Wendel Holmes expressed it: ‘The life of the law has not been logic, it has been experience’ (The Common Law (1881)).
The implication of this position is that the law is no more than a mechanism for solving particular problems and that judges should operate in such a way as to ensure the best possible result, even if this means ignoring previously established legal rules.
At other times, however, the courts have appeared to base and justify their decisions on the working out of deterministic formal rules of law, categorised in such phrases as ‘The Law is the Law’ and ‘The Law must run its course’. The suggestion behind such expressions of the Declaratory Theory of Law is that the judge is no more than the voice of an autonomous legal system that he, through his legal training, is able to gain access to but is in no way able to influence. If, as the declaratory theory of law maintains, judges do no more than give expression to already existing legal principles and rules, then the particular views, opinions or prejudices of the judiciary are of absolutely no consequence. If such a representation were accurate, then the logical conclusion would be that judges could be replaced by a computerised expert system, which could be programmed to make decisions on the basis of a strict application of general rules. It is doubtful, however, if anyone would actually accept such a suggestion. It cannot be denied that the bulk of cases are decided on the simple application of the legal rules to the particular facts of the case with little or no consideration of the legal principles. In other cases, however, the straightforward and automatic application of a legal rule might lead to the possibility of injustice.
(For those particularly interested in the possibility of developing computer models of judicial reasoning and decision-making, see Allen, Aikenhead and Widdison, ‘Computer Simulation of Judicial Behaviour’, webjcli.ncl.ac.uk/1998/issue3/allen3.html.)
Hard cases are decided on the basis of judicial reaction to the immediate facts of the case. Such a situation, however, is clearly antithetical to the declaratory theory of law.
These hard cases demand a consideration of the legal principles involved in order to achieve a just result. They may therefore be decided other than on the strict application of the law as it had been previously expressed. It should be pointed out that such cases are usually the province of the higher courts and of particularly active judges within those courts. The old maxim/cliché that ‘hard cases make bad law’ should also be borne in mind. (The career of Lord Denning might be cited as an example of this procedure and its shortcomings. Reference should be made to material covered previously in Chapter 3 of this book for a more detailed consideration of the problems inherent in judicial law-making and reform.)
In order to assess this apparent tension, if not divergence, of approach to the question whether legal reasoning is logical or not, it is necessary first of all to engage, at least minimally, in a consideration of what is to be understood by reasoning generally and logical reasoning in particular.
10.3.1 DEDUCTIVE REASONING
As regards reasoning in general, there is a division between deductive and inductive reasoning. Deductive reasoning may be categorised as reasoning from the whole to the part; from the general to the particular. Deductive reasoning finds its simplest and yet most powerful expression in the Aristotelian syllogism. The syllogism takes the following form:
Major premise: A = B for example, All men are mortal.
Minor premise: B = C for example, Socrates is a man.
Conclusion: therefore A = C that is, Socrates is mortal.
The power of the syllogism lies in its certainty. If the premises are true, then the conclusion cannot be false. The reason for this is that the conclusion is actually contained in the premises and amounts to no more than a restatement of those premises.
With regard to syllogisms, however, it is important to distinguish between validity of form and truth of content. It is quite possible for a syllogism to be logically valid but false. An example of this would be:
Major premise: A = B for example, All men are pigs.
Minor premise: B = C for example, Socrates is a man.
Conclusion: therefore A = C that is, Socrates is a pig.
The logical form of this argument, as represented in alphabetical terms is valid, but the conclusion is not true. The reason for this is obviously that the major premise is false: the statement that all men are pigs is simply not true.
It is also possible for a syllogism to be both true and valid yet still be based on a false premise. An example of this would be:
Major premise: A = B for example, All men are Greek.
Minor premise: B = C for example, Socrates is a man.
Conclusion: therefore A = C that is, Socrates is Greek.
Once again, the logical form expressed in alphabetical terms is valid, and once again the major premise is false. On this occasion, however, the conclusion is true.
To reiterate the essential point, all that the syllogistic form of reasoning maintains is that if the premises are true then the conclusion cannot be false ; in itself, it states nothing as to the truth of those premises or the truth of the conclusion derived from them. As will be considered below, much legal argument is about the truth of particular premises rather than the validity of the logical form being operated.
Deductive reasoning can take another form as follows:
If X then Y: If it rains, you will get wet.
X: It is raining.
Therefore, Y: You will get wet.
Again, the conclusion is contained in the premises, but equally again, if the premises are false, the conclusion may also be false.
10.3.2 INDUCTIVE REASONING
The second classic form of reasoning, inductive reasoning, may be described as arguing from the part to the whole; from the particular to the general. Inductive reasoning differs from deductive reasoning in two major respects:
1. It reaches a conclusion that is not simply a restatement of what is already contained in the basic premises.
2. It is less certain in its conclusions than deductive logic.
An example of this type of reasoning would be:
The sun has always risen in the east.
Therefore, the sun will rise in the east tomorrow.
If the premise is true, then the conclusion is probably true, but not 100 per cent necessarily so because the conclusion is not contained in the premise, but is a projection from it. On the basis of past experience, we can reasonably expect the sun to rise in the east tomorrow, but there is the possibility, no matter how remote it might be, that something might happen to the sun, or indeed the earth, to prevent its appearance tomorrow. The point is that we cannot predict with 100 per cent accuracy what will happen in the future just because it happened in the past. Because the inductive argument goes beyond the content of its premises, it provides the power to predict events, but it gives predictive power at the expense of certainty in its conclusion.
An alternative example of this type of inductive reasoning would be:
John is lying dead with a bullet in his head.
Jane is standing over him with a smoking gun in her hand.
Therefore, it can be concluded that Jane shot John.
Now, the conclusion may be reasonable under the circumstances, but there are other possible explanations for the scene. Jane may have simply picked up the gun after someone else had shot John. We cannot actually tell who killed John, but we may reasonably suspect Jane of the crime and she would be the first person to be questioned to confirm either her guilt or innocence. The investigation of this event would use a form of reasoning equivalent to scientific reasoning. From available data, a hypothesis would be formed; in this case, that Jane killed John. Investigations would then be undertaken to test the validity of the hypothesis. Depending on the outcome of the investigation, the original hypothesis would be either accepted, rejected or refined.
10.3.3 REASONING BY ANALOGY
A third type of reasoning is reasoning by example or analogy. If deductive reasoning involves reasoning from the whole to the part, and inductive reasoning involves reasoning from the part to the whole, then reasoning by analogy involves reasoning from part to part.
An example of this type of reasoning would be:
Wood floats on water.
Plastic is like wood.
Therefore, plastic floats on water.
Wood floats on water.
Stone is like wood.
Therefore, stone floats on water.
It can be seen that the truth of the conclusion depends completely on the accuracy of the analogy. The connection between the two objects that are being compared depends on weighing up and assessing their similarities and their differences. Only some characteristics are similar, and the question is whether those are more important than the differences between the two objects. If the analogy is valid, then the conclusion may very well be equally valid, although not necessarily correct, but, if it is not valid, then the conclusion will certainly be wrong, as the above examples demonstrate.
It is now appropriate to determine whether, or to what extent, judges use logical reasoning in reaching their decisions in particular cases and to determine which forms, if any, they make use of.
10.4.1 THE SYLLOGISM IN LAW
Some statutory provisions and also some common law rules can be expressed in the form of a syllogism. For example, the offence of theft may be reduced into such a formulation:
If A dishonestly appropriates B’s property with the intention of permanently depriving B of it, then A is guilty of theft.
A has done this.
Therefore, A is guilty of theft.
This, however, represents an oversimplification of the structure of statute but, more importantly, the effect of concentrating on the logical form of the offence tends to marginalise the key issues in relation to its actual application. As has been stated previously, the great majority of cases are decided on the truth of the premises rather than the formal validity of the argument used. In other words, argument will concentrate primarily on whether A actually did the act or not and, second, on whether A appropriated the property either ‘dishonestly’ or ‘with the intention of permanently depriving’ B of it. Those are questions of fact, not logic.
10.4.2 THE LOGICAL FORM OF PRECEDENT
The operation of the rules of precedent appears, at first sight, to involve a similar operation of deductive logic to that applied in statute law: the judge merely applies the legal principle established in the precedent to the facts in hand to determine the outcome of the case. Thus:
Precedent : in case X involving particular circumstances, legal principle Y was applied leading to conclusion Z.
Instant case : in case W, similar circumstances to those in X have occurred.
Therefore : principle Y must be applied to reach a conclusion similar to Z.
A closer consideration of the actual procedure involved in precedent, however, will reveal that it is not totally accurate to categorise precedent as a form of deductive reasoning.
In looking for a precedent on which to base a decision, judges are faced with a large number of cases from which to select. It is extremely unlikely that judges will find an authority that corresponds precisely to the facts of the case before them. What they have to do is to find an analogous case and use its reasoning to decide the case before them. This use of analogy to decide cases is prone to the same shortcomings as were revealed in the previous consideration of reasoning from analogy in general. The major difficulty is the need to ensure the validity of the analogy made, if the conclusion drawn is to be valid. There is, no doubt, considerable merit in the wish for similar cases to be treated similarly, but given the lack of precision that is inherent in the process of reasoning by analogy, it is not altogether certain that such a wish will be met.
A further reason why the operation of precedent cannot simply be considered as an example of deductive reasoning relates to the process through which the precedent is actually determined once an analogous case has been selected. The binding element in any precedent is the ratio decidendi of the decision. In delivering his decision, the judge does not separate the ratio of the case from other obiter comments. As has been considered previously, the ratio is a legal abstraction from the concrete facts of the case in which it appears, and in practice, it is for judges in subsequent cases to determine the ratio of any authority. The determination of the ratio and thus the precedent in a previous case may be seen as a process of inductive reasoning, in that the judge in the present case derives the general principle of the ratio from the particular facts of the previous case. This move from the particular to the general is by its nature inductive. The point to be remembered here is that, as was considered in relation to reasoning in general, the use of inductive reasoning cannot claim the certainty inherent in the use of deductive reasoning. The introduction of this increased element of uncertainty is inescapable and unconscious, but it is also appropriate to note that the determination of precedent by later courts gives the later judges scope to consciously manipulate precedents. This is achieved by the later judges formulating the ratio of a previous case in the light of their opinion as to what it should have been, rather than what it might actually have been. In other words, they have the scope to substitute their version of the ratio, even if it contradicts what the original judge thought the ratio was.
Thus, the apparent deductive certainty of the use of precedent is revealed to be based on the much less certain use of inductive reasoning and reasoning by analogy, with even the possibility of personal views of the judges playing some part in deciding cases. This latter factor introduces the possibility that judges do not in fact use any form of logical reasoning to decide their cases, but simply deliver decisions on the basis of an intuitive response to the facts of the case and the situation of the parties involved. The suggestion has been made that judges decide the outcome of the case first of all and only then seek some post hoc legal justification for their decision; and given the huge number of precedents from which they are able to choose, they have no great difficulty in finding such support as they require. The process of logical reasoning can be compared to the links in a chain, one following the other, but a more fitting metaphor for judicial reasoning would be to compare it with the legs of a chair: forced into place to support the weight of a conclusion reached a priori. Some critics have even gone so far as to deny the existence of legal reasoning altogether as a method of determining decisions, and have suggested that references to such are no more than a means of justifying the social and political decisions that judges are called upon to make.
In conclusion, however, it is not suggested that legal reasoning does not employ the use of logic, but neither can it be asserted that it is only a matter of logic. Perhaps the only conclusion that can be reached is that legal reasoning as exercised by the judiciary is an amalgam; part deductive, part inductive, part reasoning by analogy, with an added mixture of personal intuition, not to say personal prejudice.
10.4.3 LEGAL REASONING AND RHETORIC
Following on from the previous questioning of the logical nature of legal reasoning, it might be valuable to consider further the claim that legal decisions are not the outcome of a process of logical reasoning, but are in fact the products of a completely different form of communication. According to Peter Goodrich (Reading the Law (1986) at 171):
… the legal art is an art of interpretation; it is concerned not with a necessary or scientific logic, but with probable arguments, with evaluative reasoning and not with absolute certainty. Rhetoric is the discipline which most explicitly studies the techniques relevant to presenting and evaluating, affirming or refuting, such probable arguments … rhetoric, here, is defined as the reading of legal texts as acts of communication, as discourse designed to influence, to persuade and to induce action.
Goodrich analysed the use of rhetoric in law, from ancient Greece until the present time, in Chapter 6 of his book. In so doing, he revealed the specific rhetorical devices that judges bring to bear in their decisions in order to persuade their audience as to the objective validity of their decisions.
The question, however, is as to who constitutes the audience that the judiciary addresses. In the case of summings-up to juries, the answer is obvious, but there is still an audience being addressed when the judge delivers a judgment in any case. That audience, it is suggested, is the community at large, but with the community not as an active participant in the legal process, but as a passive body that merely has to be persuaded of the inherent and unquestionable validity of the judge’s decision in any particular case.
As Goodrich points out (1986 at 188):
The language of the legal decision strives for the appearance of objectivity and the exclusion of dialogue in favour of monologue. Its principal aim and function is that of achieving an image of incontestable authority and of correct legal meanings. Such a task is, essentially, a rhetorical one: the monologue is the language-usage of authority, it precludes dialogue or any questioning of the meanings given, and it closes legal discourse by privileging the voice of the judicial author as the supreme arbiter of meanings.
Rather than being presented as a particular individual’s opinion, the legal text is typically expressed as in the language of objectivity. The use of such terms as ‘thus’, ‘because’, ‘for the reason that’, ‘in spite of’ indicates the voice of necessity, not of choice. When this is combined with the use of terms such as ‘therefore’ or ‘consequently’, the outcome is to reinforce the impression that the judge is merely engaged in a working out and presentation of the formal operation of the objective system that is law. In this fashion, the language of apparently objective, and logically determined, legal categories is revealed to be a mere rhetorical device marshalled by judges to provide their particular decisions with the justification of pseudo-objectivity. This process is complemented by the use of axioms; unquestioned and apparently unquestionable self-evident truths, to which the judiciary frequently have recourse in order to validate, without justifying, their own assumptions and presumptions. One should be on one’s guard when one reads judges referring to principles that are ‘so fundamental that they need not be debated’, or where conclusions follow ‘as a matter of course’ on the basis of ‘well settled principle’. The question is whether such claims merely appeal to uncorroborated precedents and unsubstantiated prejudices.
One further aspect of the rhetorical nature of the judicial presentation directly relates to the inherently political nature of judicial decision making. It is almost a commonplace in the most politically sensitive cases that the judges involved will ritually intone the mantra to the effect that, ‘it is fortunate that the court does not have to consider the political aspects of this case …’, before going on to make what cannot but be a political decision. To the contrary, as this book maintains, all judicial decisions are political in that they reflect a disposition as to where power should be located in any particular situation.
Judgments, and judicial presentations to juries, therefore are not merely statements of law; they are equally, if not more fundamentally, exercises in rhetoric. To read a judgment in this way is to see it in a new revelatory light that shows the justificatory, if not manipulative, use of language and linguistic devices that are an essential element of the judgment. It has to be pointed out, however, that the nature and use of rhetoric has changed over time. The difference between the operation of rhetoric in the ancient world and its use by the judiciary today is that, whereas in the ancient world it was used as a means of persuading an audience to reach a particular decision, its contemporary role is that of justifying the decision that the judge has taken. The judge speaks, the audience listens and is persuaded: the role of the audience as a participant has been removed and it now merely exists as the passive receiver of the court’s decision.
In R (Smeaton) v Secretary of State for Health ( EWHC 610, paras 46 and 47) which considered the legality of the morning after contraceptive pill, Munby J stated:
I have said that this case raises moral and ethical questions of great importance. It would be idle to suggest otherwise. For those who view such matters in religious terms it raises religious and theological questions of great – and, to some, transcending – importance. But I must emphasise that, so far as the court is concerned, this case has nothing to do with either morality or religious belief. The issue which I have to decide is not whether the sale and use of the morning-after pill is morally or religiously right or wrong, nor whether it is socially desirable or undesirable. What I have to determine is whether it may constitute an offence under the 1861 Act.
Cases such as this, and others in the field of medicine (one thinks of cases such as Airedale NHS Trust v Bland  AC 789 and Re A (Conjoined Twins: Medical Treatment)  Fam 147), raise moral, religious and ethical issues on which, as Lord Browne-Wilkinson pointed out in Bland at pp 879E, 880A, ‘society is not all of one mind’ and on which indeed ‘society as a whole is substantially divided’. Our society, including the most thoughtful and concerned sections of our society, are deeply troubled by, and indeed deeply divided over, such issues. These are topics on which men and women of different faiths, or indeed of no faith at all, may and do hold, passionately and with the utmost sincerity, starkly differing views. All of those views are entitled to the greatest respect but it is not for a judge to choose between them. The days are past when the business of the judges was the enforcement of morals or religious belief. (emphases added)
With the greatest of respect to Munby J, what he seeks to avoid is exactly what he is forced to do in making his ‘legal’ decision.
The effect of the HRA on the interface between the judiciary and the executive has been considered previously at 2.5, but that Act merely heightened the potential for conflict in a relationship that was already subject to some tension as a consequence of the operation of judicial review. If the interface between judiciary and executive tends now to be most sharply defined in human rights actions, the previous and continued role of judicial review in that relationship should not be underestimated.
The growth in applications for judicial review prior to the HRA was truly startling, as individuals and the judiciary recognised its potential utility as a means of challenging administrative decisions. The records show that in 1980, there were only 525 applications for judicial review; in 1996, 4,586; in 1997, 4,636 such applications; and by 1998, applications had passed the 5,000 mark and continued to rise.
At the outset, it should be noted that although this section focuses on those instances where the judiciary have decided against the exercise of executive power in a particular way, it has to be emphasised that the vast majority of judicial review cases are decided in favour of the executive. This may be significant when the views of Professor Griffith are examined at 10.7.1 below.
The remedies open to anyone challenging the decisions or actions of administrative institutions or public authorities can be divided into private or public law remedies.
10.5.1 PRIVATE LAW REMEDIES
There are three private law remedies:
This is a definitive statement, by the High Court or county court, of what the law is in a particular area. The procedure may be used by an individual or body to clarify a particularly contentious situation. It is a common remedy in private law, but it also has an important part to play in regard to individuals’ relations with administrative institutions. This can be seen, for example, in Congreve v Home Office (1976), where the Court of Appeal stated that it would be unlawful for the Home Office to revoke annual television licences after only eight months because they had been bought in anticipation of an announced price rise but before the expiry of existing licences.
Declarations, however, cannot be enforced either directly or indirectly through the contempt of court procedure. Public authorities are, as a matter of course, expected to abide by them.
Usually, an injunction seeks to restrain a person from breaking the law; alternatively, however, a mandatory injunction may instruct someone to undo what they have previously done, or alternatively to stop doing what they are doing. Both types of injunction may be sought against a public authority. See Attorney General v Fulham Corp (1921), in which a local authority was ordered to stop running a laundry service where it only had the power to establish laundries for people to wash their own clothes.
Damages cannot be awarded on their own in relation to administrative misconduct, but may be claimed in addition where one of the other remedies considered above is sought, as, for example, in Cooper v Wandsworth Board of Works (1863). In this case, a builder had put up a building without informing the Board of Works as he was required to do. When the Board demolished the building, he nonetheless recovered damages against them on the basis that the Board had exceeded its powers by not allowing him to defend or explain his actions.
In order to seek one of these private law remedies, an individual merely had to issue a writ against a public authority in their own name. They did not require the approval of the court.
10.5.2 THE PREROGATIVE ORDERS
The prerogative orders are so-called because they were originally the means whereby sovereigns controlled the operation of their officials. As a consequence, the prerogative orders cannot be used against the Crown, but they can be used against individual ministers of State and, since R v Secretary of State for the Home Department ex p Fire Brigades Union (1995), considered at 10.6.1 below, it is clear that ministers cannot avoid judicial review by hiding behind the cloak of prerogative powers. The prerogative orders are as follows:
A quashing order, formerly known as certiorari, is the mechanism by means of which decisions of inferior courts, tribunals and other authoritative bodies are brought before the High Court to have their validity examined. Where any such decision is found to be invalid, it may be set aside. An example of this can be seen in Ridge v Baldwin (1964). Here, the plaintiff had been dismissed from his position as Chief Constable without having had the opportunity to present any case for his defence. The House of Lords held that the committee that had taken the decision had acted in breach of the requirements of natural justice and granted a declaration that his dismissal was null and void.
A prohibiting order, formerly known as prohibition, is similar to certiorari in that it relates to invalid acts of public authorities, but it is different to the extent that it is preemptive and prescriptive in regard to any such activity and operates to prevent the authority from taking invalid decisions in the first place. An example of the use of the order arose in R v Telford Justices ex p Badham (1991). In this case, an order was issued to stop committal proceedings in relation to an alleged rape that had not been reported until some 14 years after the alleged incident. The delay meant that the defendant would have been unable to prepare a proper defence against the charge.
A mandatory order, formerly known as mandamus, may be seen as the obverse of a prohibiting order, in that it is an order issued by the High Court instructing an inferior court or some other public authority to carry out a duty laid on them. Such an order is frequently issued in conjunction with an order of certiorari, to the effect that a public body is held to be using its powers improperly and is instructed to use them in a proper fashion. In R v Poplar BC (Nos 1 and 2) (1922), the court ordered the borough council to pay over money due to the county council and to levy a rate to raise the money if necessary. Failure to comply with the order led to the imprisonment of some of the borough councillors.
In O’Reilly v Mackman (1982), however, the House of Lords decided that issues relating to public rights could only be enforced by means of the judicial review procedure, and that it would be an abuse of process for an applicant to seek a declaration by writ in relation to an alleged breach of a public duty or responsibility by a public authority. In deciding the case in this way, the House of Lords did much to demarcate and emphasise the role of judicial review as the method of challenging public authorities in their performance of their powers and duties in public law.
10.5.3 GROUNDS FOR APPLICATION FOR JUDICIAL REVIEW
Judicial review allows people with a sufficient interest in a decision or action by a public body to ask a judge to review the lawfulness of:
(a) an enactment; or
(b) a decision, action or failure to act in relation to the exercise of a public function.
However, it is not an appeal on the merits of a decision. The grounds of application can be considered under two heads: procedural ultra vire s and substantive ultra vires :
Procedural ultra vires, as its name suggests, relates to the failure of a person or body, provided with specific authority, to follow the procedure established for using that power. It also covers instances where a body exercising a judicial function fails to follow the requirements of natural justice by acting as prosecutor and judge in the same case or not permitting the accused person to make representations to the panel deciding the case.
Substantive ultra vires occurs where someone does something that is not actually authorised by the enabling legislation. In Associated Provincial Picture House v Wednesbury Corp (1947), Lord Greene MR established the possibility of challenging discretionary decisions on the basis of unreasonableness.
Lord Greene’s approach was endorsed and refined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1984), in which he set out the three recognised grounds for judicial review, namely:
• procedural impropriety.
Lord Diplock, however, introduced the possibility of a much more wide-ranging reason for challenging administrative decisions: namely, the doctrine of proportionality. Behind this doctrine is the requirement that there should be a reasonable relation between a decision and its objectives. It requires the achievement of particular ends by means that are not more oppressive than they need be to attain those ends. The potentially innovative aspect of this doctrine is the extent to which it looks to the substance of the decisions rather than simply focusing on the way in which they are reached.