In a speech entitled “The Limits of Law,” given in Malaysia on 20 November, 2013, Lord Sumption, a Justice of the Supreme Court of the United Kingdom, gave an elegantly articulated, though ultimately downbeat assessment of how social tasks are at present assigned to the courts rather than dealt with by other, arguably preferable, means of social control such as legislation.
Though much-debated, by Sumption’s admission, it is an important and difficult question. It is not my intention in this post to summarise those arguments, but to review how limitations of the law, as defined by a senior judge, might influence sentiment towards ADR and facilitated negotiation where the interests of multiple parties clash.
Sumption first highlights a tendency in common law jurisdictions to “characterise as questions of law issues which do not really lend themselves to a legal solution.” He cites a case before the QBD [R v Lord Chancellor ex parte Witham  QB 575] on the question of legal aid and access to justice at an affordable cost. “What the Divisional Court did was reduce the question before it to a binary question. Was it fundamental to the legal order that the poor should be able to afford court fees, Yes or No.” By classifying the question in that narrow way, the court turned it into a question of law. Sumption argues that, “Had it confronted the real issue, it might have concluded that it wasn’t a justiciable issue at all.”
In the context of Human Rights, Sumption is troubled by an underlying phenomenon, namely fundamental rights, declared by judges, “as a prime instrument of social control and entitlement”. He identifies the main casualty of that approach as being the political process, which is “no longer decisive over a wide spectrum of social policy”.
Sumption then mounts an unexpected defence of the political process in preference to judge-made law, but first feeling it necessary to highlight, “the contempt felt by many intelligent commentators for what they regard as the illogicality, intellectual dishonesty and the irrational prejudice characteristic of party politics.” Hear-hear.
We perhaps ask too much of politicians. According to Sumption, people “expect their politicians to be not just useful but attractive. They demand principle, transparency and consistency from them. And when they do not get these things, they are inclined to turn to courts of law instead.”
The Virtue of Messy Compromises
And why not? “The attraction of judge-made law is that it appears to have many of the virtues which the political process inevitably lacks. It is transparent. It is public. Above all, it is animated by a combination of abstract reasoning and moral value-judgment, which at first sight appears to embody a higher model of decision-making than the messy compromises required to build a political consensus in a Parliamentary system.”
Nevertheless, he highlights the price that has to be paid for these virtues. “The judicial resolution of major policy issues undermines our ability to live together in harmony by depriving us of a method of mediating compromises among ourselves.” Politics, he submits, is such a method, and one in which we can all participate.
He goes on to examine why in his view, legislative decisions about rights are more likely to be correct than judicial ones, “even if what one is looking for is the intellectually or morally ideal outcome.” His rationale is illuminating, and though the context is specific to fundamental rights and public policy, I believe it has broader resonance in other scenarios where mediation by any means is a possibility, and in particular where the interests of multiple parties are a central feature. It is worth quoting at length:
“The reason, as it seems to me, is that 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. In deciding where the balance lies between individual rights and collective interests, the relevant considerations will often be far wider than anything that a court can comprehend simply on the basis of argument between the parties before it. Litigants are only concerned with their own position. Single-interest pressure groups, who stand behind a great deal of public law litigation in the United Kingdom and the United States, have no interest in policy areas other than their own. The court, being dependent in the generality of cases on the material and arguments put before it by the parties, is likely to have no special understanding of other areas. Lon Fuller famously described these as “polycentric” problems. What he meant was that any decision about them was likely to have multiple consequences, each with its own complex repercussions for many other people. “We may visualise this kind of situation by thinking of a spider’s web,” he wrote; “a pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole.” In such a case, he suggested, it was simply impossible to afford a hearing to every interest affected. One of three consequences follows, and sometimes all three at once. First, the judge may produce a result which because of its unexpected repercussions is unworkable or ineffective or obstructive of other legitimate activities. Secondly, the judge may end up by acting unjudicially. He may consult third parties, or make guesses about facts of which he has no sufficient knowledge and cannot properly take judicial notice. Third, he may reformulate the issue so as to make it a one-dimensional question of law in which the only relevant interests appear to be those of the parties before the court, which is what the Divisional Court did in Mr. Witham’s case. Decisions made in this way are necessarily made on an excessively simplified and highly inefficient basis.”