The Limits of Law I Lord Sumption
Lord Sumption gives the 27th Sultan Azlan Shah Lecture, Kuala Lumpur
The Limits of Law
20 November 2013
"In a precedent-based system, judges lay down general statements of principle which the stand as authority in future cases. They do not merely discover legal principle concealed in the luxuriant undergrowth of ancient principle and scattered legal decisions, as the great eighteenth century jurist Blackstone supposed and generations of common lawyers pretended."
"Laws J, one of the most thoughtful constitutional lawyers to have sat on the English bench in recent times, considered that access to justice at an affordable price was not just another government service. It was constitutional right, which could only be restricted with specific statutory authority. Since Britain does not have a written constitution, Laws J was exercising a purely judicial authority when he declared this constitutional right to exist."
"Just as common law judges make law, so also they unmake it. They overrule past decisions, even those of the highest appellate courts. The declaratory theory of law holds that in that case the earlier decisions must always have been wrong. It was just that the courts had taken
a long time to realise it. But this is now overtly recognised as the fiction it always has been."
The power to extrapolate or extend by analogy the scope of a written instrument so as to enlarge its subject-matter is not always easy to reconcile with the rule of law. It is a power which no national judge could claim to exercise in relation to a domestic statute, even in a common law system. It is potentially subjective, unpredictable and unclear."
"The moment that one moves beyond cases of real oppression and beyond
the truly fundamental, one leaves the realm of consensus behind and enters that of legitimate political debate where issues ought to be resolved politically."
"Lack of democratic legitimacy is a potential problem about all judge-made law. In a common law system it has to be accepted within limits. But it is a potentially a rather serious problem in the case of judicial decisions about supposedly fundamental rights."
"Democracy is a constitutional mechanism for arriving at decisions for which there is a popular mandate. But the Convention and the Strasbourg court use the word in a completely different sense, as a generalised term of approval for a set of legal values which may or may not correspond to those which a democracy would in fact choose for itself."
"What kinds of social tasks can properly be assigned to judges and courts, as opposed to other agencies of social control?"
"Judges can now not only say that the law was
one thing yesterday and another tomorrow. They can actually admit that they are doing it."
"We live in an age of unbounded confidence in the value and efficacy of law as an engine of social and moral improvement. The spread of Parliamentary democracy across most of the world has invariably been followed by rising public expectations of the state, of which the courts are a part. It is a very significant power."
"The state has become the provider of basic standards of public amenity, the guarantor of minimum levels of security and, increasingly, the regulator of economic activity and the protector against misfortune of every kind. The public expects nothing less."
"Rights can never be wholly unqualified. Their existence and extent must be constrained to a greater or lesser extent by the rights of others, as well as by some legitimate collective interests."
"We do not need the Convention in order to introduce changes for which there is a democratic mandate. The Convention and its judicial apparatus of enforcement are only necessary in order to impose changes for which there is no democratic mandate. It is a constraint on the democratic process."
"The essential function of politics in a democracy is to reconcile
inconsistent interests and opinions by producing a result which it may be that few people would have chosen as their preferred option, but which the majority can live with."
"Democracy requires a minimum degree of social cohesion and tolerance of internal differences in order to function properly. Provided that these conditions exist, politics is quite simply a better way of resolving questions of social policy than judge-made law."
"The United Kingdom has shown a remarkable ability to adapt peaceably
to changing realities. Some of these changes have radically disturbed existing expectations and vested interests. Yet the law has adapted
itself to them in a way which has generally been accepted by a
broad consensus among its citizens. This process of compromise and
adaptation in the face of disruptive social change owes almost everything to politics. Courts of law could not have done it. It is not their job."
"The social and political implications of judicial decisions are usually more limited in civil law jurisdictions than they are in the world of the common law."