Introduction of the language that has been used

Introduction Every case that is presented before a court needs to be provide with a verdict. Decisions in courts are often made by referring to enacted legislations or common law. Nevertheless, occasionally courts are faced with what H.L.A Hart refers to as ‘hard cases’. Hart explains that ‘hard cases’ are cases in which primary rules do not exist and thus forcing judges to look beyond the legal scope and invoke a law that becomes a primary rule. Dworkin inevitably argues that ‘hard cases’ do not exist because even if there are no rules in place there are principles that are legal principles in answering a legal problem. It would be ignorant to not accept that sometimes courts are faced with difficult decisions that would set a precedent for the future. In these cases, courts are often placed in a position of having to strike a balance between morality and law. Therefore, in this paper we will establish how decisions are made based on legislation and the common law and investigate the link between morality and the legal decision making process. We will analyse the decisions reached by the court in R v Human Fertilisation and Embryology Authority, ex parte Blood (1997) and ‘The Case of the Speluncean Explorers (1949)’How do Courts decide cases? As it has been said earlier, the courts have two methods on deciding the verdicts in cases which are by referring to legislation or by referring to the common law. Legislation Courts often faced difficulty in interpreting legislations. Judges are tasked with the difficult task of attaching meanings to the words that Parliament has used, as Lord Steyn says that “judges try to make sense of a system choked with legislation”. It is often the interpretation of legislation that makes a decision making “hard”. In the event that no precedent exist for a certain set of facts, judges are tasked with interpreted a legislation as best that they can. Nevertheless, certain complexities may arise as a result of the language that has been used by the draftsman. Xander says that the problem of the draftsman arises due to the fact that at the moment of drafted a certain legislation, even the best draftsman can only list down a certain number of possibilities and leave some to common sense. This is because listing down the entirety of the possible outcomes would lead to an inevitably complex piece of legislation that no layperson would be able to make sense of or will make a simple task complicated. He highlights this in the example of asking a servant to “fetch some meat for soup”. Even if the draftsman is able to list down all possible outcomes without making a piece of legislation complicated, he may then not include the only outcome the case presents itself in. The court then has to use the legislation to decide the appropriate outcome of the case. To combat these difficulties, the courts are provided with certain to tools to assist them like the ‘literal rule’, ‘golden rule’ and ‘mischief rule’. Lord Reid observed that we “often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.” In interpreting legislation judges are provided with limited ambit to make an interpretation. It is said that a “judge’s task is interpretation, not interpolation. Interpretation is not infinitely expandable” and that a judge “should act as deputy to the appropriate legislature”. Common Law The common law prescribes to the doctrine of precedent. Osborne’s Concise Law Dictionary defines precedent as “a judgement or decision of a court cited as an authority for deciding a similar set of facts…An authoritative precedent is one which is binding and must be followed.” Authoritative precedents is more aptly put by Salmond as a precedent “which judges must follow whether they approve of it or not”. The doctrine of precedent subscribes to the rule of stare decisis which is the rule to adhere to decided cases and not unsettle unestablished things. The legislative problems referred to earlier causes the existence of gaps in the legal doctrine. Therefore common law or judge-made law is the legal remedy to “supplement the imperfectly developed body of legal doctrine.” This does not mean that the doctrine of precedent is without flaws. Some legal decision may deviate from the tangent of the law. Salmond writes that a decision is “clearly and seriously wrong” when it is (1) in the opinion of the court in which it is cited to and it must either be “contrary to law” or “contrary to reason” and (2) the rule that it is substituted for must be shown to be clearly better. Based on what has been said, this means that a court should only overrule a precedent when it is convinced that a precedent is “palpably erroneous”. This makes the decision making process more difficult as judges have to be able to view the effect a precedent in the future and to what extent it would alter the current legal doctrine. The effect of a precedent is what makes decision making “dangerous”. This is because the an error in decision making could lead to long term harm.Influence of morality on the legal doctrine It is important to consider the moral aspect of the law as we call into question judicial decision making. Tasioulas points out there is a distinction between “moral standards from legal and other standards”. It is established that morality often depends on the majority, then it must be said that not all morality should become law, this is enforced by Justice White in Bowers as he says the “majority sentiment about morality…should be declared inadequate.” Therefore, the legal doctrine tries to strike a balance between morality and the law and this aspect may be viewed to be “dubious”.The legal enforcement of morality has often raised opposition but it would be ignorant to not admit that morality has affected the development of law. Hart asks ” is the fact that certain things are immoral by common standard sufficient to make it punishable by law?”, the answer to which is a no. This is because although through the passing of laws certain liberties may have been inhibited causing paternalism. Hart says that paternalism is “designed to protect individuals from themselves”.   The law has imposed moral norms in the prevention of causing harm or indirect harm to others. The law is not concerned in harms such as feelings and emotions but Feinberg says that the “harms” that require consideration are the ones that “setbacks to interests” and in some way wrong. In making the distinction between moral and non-moral harms does involve moral judgement, for instance, the jealousy of others is not a relevant harm. Greenawalt says that there even if it was possible to derive legal judgment without any reference to any morality would only lead to the same kind of instruments being used to justify it, but assuming it was possible it would then be hard to defend the position. This shows that moral reasoning plays a role in defining harm but it does not mean that “legal rules appropriately enforce morality in general”. The law has not imposed a duty in performance of acts that benefits others and the refraining of acts that offend others. Despite the deontological perspective that a person should have a duty to prevent the befalling of harm unto others, the law has not imposed this. This is because although it would be moral to impose a duty, it would make it hard to determine if a person is in the capacity of assisting another. The legal doctrine does not implement a law simply because people take offense in it an act due to forms of irrationality. The law has accepted that “there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.” The legal doctrine still imposes paternalism on certain acts like beastiality, not because it is concerned in the offence of others but rather the health of a person who engages in such activities. In conclusion, the relationship of morality and the legal doctrine is best put by Murphy as he says that not all revulsion is moral revulsion and if the majority were to get its way, it would deprive the law of all rationality.Evaluation We shall evaluate the conditions we have discussed earlier and use them to determine if the court has refused its duty to decide disputes because the case presented before them is “hard, or dubious, or dangerous”. Firstly, in discussing legislation we established that the duty of judges are to interpret and not interpolate the legislation and ensure that the judge is not overruling a legislation with his opinion. Secondly, we take into consideration the decisions made by the judges to evaluate the possible harms that could occur out of their decision and ensure that they are only supplementing the law. Thirdly, we need to ensure that the decision has a balance of law and morality meaning that morality is enforced by ensuring that judges do not exceed their allotted ambit and are not influenced by society in the application of the law. Analysis: The Case of the Speluncean Explorers (1949) Legislatively, the statute of Newgarth taken literally would ensure that these men be put to death for their crimes. The common law of Newgarth did not have authoritative precedent on this thus making it difficult for a verdict. Morality would have dictated that the law set these men free as their actions were required in order for survival.Firstly, we look legislatively if the judges surpassed their allotted ambit in interpreting the law by considering the issues raised. The evident purpose of the legislation raised by Foster J exceeds that ambit allowed as this method allows him to place his own meaning as to what the legislation should mean. In asking for clemency and considering methods of acquittal as done by Truepenny CJ and Handy J clearly shows the court failing to act as executors of legislation but rather an interference in the executive branch and a greater interest in the result of the case rather than the legal question. In considering that a contract was made, it can be said that any contract would be viatiated if the act involves a crime like in this instance. The only arguments that were in line with legislation was brought forth by Tatting J and Keen J. They looked into the function of the criminal law and that this act was conducted after much deliberation making it a willful act. Keen J showed the scope available to him by stated the only acquittal should in the instance of self defense. These were the only two judges that did not exceed the scope available. Secondly in setting a precedent, had Foster J got his way the limits of determining necessity would bring the court much difficulty to determine necessity. Tatting J suggested that the prosecutor should not have asked for an indictment. If this were carried out, the judiciary would lose its power in determining where the law was breached and surrender that power to the prosecutor. Keen J had the best approach in dealing with precedent. He maintained that the court are actors to fill up gaps in the law and that necessity should not be a defense for homicide. He then highlighted the fact that this must make sense since stealing a piece of toast in desperate hunger would be a criminal offense and if something that is legal consumption even stolen in necessity may be a crime what more a something that is illegal.Thirdly, we come to morality. The idea raised by Keen J was that he is bound to law of the land and not his ideas of morality. This is in line with the idea of morality discussed earlier that there should be a balance between law and morality. This was diametrically opposed to the idea of morality raised by Handy J as he considered and the fact of public opinion and that the Chief Executive might not grant clemency. This highlights that he had been influenced by societal morals that affected his decision. As discussed earlier, this should not be the case in legal reasoning. In conclusion although this conviction was upheld which would have been the right decision, the majority of the court in making their decision either erred by exceeding the ambit provided legislatively, did not supplement the law or did not strike a balance between the legal doctrine and morality. Analysis: R v Human Fertilisation and Embryology Authority, ex parte Blood (1997) This case was appealed in the Family Division of the High Court once and the appeal failed. This case moved to the Court of Appeal as to where it succeeded. Legislatively, the taking of the sperm from Mr Blood while he was unconscious and storing it was wrong. The export of the sperm too should have been disallowed since the gametes could not be legally used in the country. The position under the 1990 Act was correctly upheld by the court after rejecting the claim that it could not be claimed that Mr Blood and Mrs Blood were receiving treatment together. The court erred in the case of dealing with the export of the sperm to a member state, the court overlooked the Authority’s General Directions which disallows the export of gametes if they are unlawful to be used in the country. The court also seemed to have overlooked the Authority’s Code of Practice that states that a donor’s consent is required in order for the gametes to be exported. It may seem that the court may have overlooked the legislation in this case. The court in ruling that the Act did not infringe on Article 59 and 60 of the E.C. Treaty due to the discretion allowed to the Authority. This would mean that the Authority could effectively make decisions that overrule the Act. This clearly goes to show that the court may have placed more importance on ensuring that Mrs.Blood could export the gametes elsewhere for treatment then solving the legal question before them. It should be noted that this case would not be a precedent as the storage of gametes from an unconscious person would be unlawful. Nevertheless, the court did not rule on the removal of gametes from an unconscious person and this could mean that a person could remove gametes from an unconscious person and immediately export it to a member state for use. Although there is no precedent regarding the export of gametes, R v Henn and Derby should be used as a precedent. This because the UK prohibited the import of goods not legally available in the UK on the grounds of public policy. It is only logical that the same rule should apply for export material. Thus, based on precedent the court should disallow Mrs Blood from exporting the gametes which the court failed to do. Finally, on the aspect of morality. The court mistakenly assumed that no precedent could come out of this case and thus may have placed a larger importance on morality. Therefore, the court was not able to achieve a balance between legal and moral reasoning.    Conclusion Based on the evaluation, in both cases the courts failed to exercise the allotted ambit of interpretation of legislation to them but instead interpolated the law, did not consider the harms of the precedent they would set and was allowed to be influenced by morality in respect to the public opinion.

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