Judiciary, Morality and the Rule of Law

DISCUSSION A 

I agree with your contribution that the judge is mandated and expected to interpret the law in a proper light as a representative of the judiciary. The Human Rights Act 1998 provides citizens with inalienable rights that must be protected by the court, any case touching on the rights is heard and argued, and the decision passed in a manner that will be by the spirit of the law.

However, there is a hazy intersection between law and morality. Morality can be considered relative or absolute; relative morality presents two sides of viewing the same problem 1 . While one community, person, or state may perceive an act to be immoral, another may see it of inconsequential effect or even worse than the other perceived it. The law establishes fixed grounds upon which matters of judicial concern must be determined. Nevertheless, the law as far as possible is an interpreter of itself but is also mingled with the thinking of judges who may differ in their understanding of the law.

Moreover, the moral bearing of the judge has an important contribution to make in the making of a decision. For example, the law may state that murder is unacceptable. Killing is the subject of morally and equally or in a different degree the subject of law. Here morality and law have intersected. What if the judge does not view killing as immoral; the judge will concur with the plaintiff. In contrast, if the law implied that murder is not punishable whereas the judge perceives it on the contrary. The judge's moral view will be at conflict with the spirit of the law. I would like to add that the judge has the obligation of upholding the law even if the moral conviction of the judge is at a crossroad with the statement of the law and is expected to engage in moral reasoning 2 . For example, if a judge does not agree that liberty should be granted and a case is presented before the jury concerning the violation of a person’s liberty; the judge will, or the judges are expected to uphold the law and grant the defendant a just hearing and ruling.

DISCUSSION B 

I commend your assertion that state of the law cannot be static as is established to serve the needs of humanity which are constantly changing. The continuous change has created the need for occasional amendments that is often used to introduce or remove a clause in the law or add further explanation and clarify a loophole existing within established law. Furthermore, as has been demonstrated in discussion A, morality and law must be used concurrently in decision-making, the morality of the society changes; the laws must adjust to meet new demands. This argument can be reinforced through the principle that the law and society are mutually constitutive; that is, they create each other 3 . I would like to add that the political climate affects the state and application of the laws. A factor such as increasing fluidity of boundaries, like the establishment of unions such as EU, changes areas of jurisdictions. Laws must be established to cover extensive areas and blend with local laws; by upholding the relevance of the local laws and the legitimacy of the international laws. For example, the Brexit revolution introduces a new dilemma to the understanding and application of the law. The nations are removing from a conglomeration to single states. These states are presented with the dilemma of establishing laws and systems that will be relevant to their cases. With the changing flexibility in the legal system regarding laws and structures, the judges have to make adjustments. Thus, the law cannot and should not be static. The law defines the judiciary and democracy. With the changing laws, all these elements will undergo a major transformation to accommodate the adjustments made. It is inevitable that with changing laws, some institutions will be weakened as others will obtain more power to exercise their mandate. The change is inescapable, and the only way through which the law repairs itself and the society adjusts based on the principle of the mutual constitution.

DISCUSSION C 

Court rulings are significant given their tendency to influence future court decisions or precedent. The concept of precedent can be viewed as a bar to the acceptable interpretation of the constitution. Court rulings in the past may have been established or based under different circumstances or erroneous interpretation of the law; to lift and claim leniency under such laws would further propagate the error thus obscuring the intended role of the constitution. Therefore, the application of leniency in the case of The Case of the Speluncean Explorers should be carefully considered since it will have future implications on the interpretation and application of the law. Justice Foster, J. is not under constitutional restraint to apply leniency. However, if it must be applied, the correct explanation of the law must be set forth, and clear reason and circumstances for that reasoning be stated so that future applications will be implemented in line with the circumstances and reasoning of the court. A squishy statement should not be accepted as a reason for applying leniency 4 . Looking at the court case, the charged persons under normal circumstances would not have engaged in the act, but arguing so will appear to be giving an excuse for the broken law. Instead, the court must consider what they did and did not do and the statement of the constitution to make a ruling. Regardless of the consequences, they ought to be applied as it states even where they would appear to contradict moral orientation.

FIRST ASSIGNMENT 

The role of the judiciary as exercised by the judges and other court officials is to administer civil and criminal justice according to the rule of the law without any partiality. However, a dilemma arises caused by the insufficiency of the law and other confounding factors as experienced in The Case of the Speluncean Explorers. The judges face with dilemmas and positions that generate different rulings, which result in the effecting of earlier ruling and consequent hanging of the explorers. The important question is how the judges upheld the law in the case.

Chief Justice Truepenny 

The chief justice considers the law clear, lacking in ambiguity, to influence the decision otherwise. The statute imputes death as a punishment on those who willfully take the life of the others. The law does not add further explanations or exceptions. Truepenny's ruling follows a plain reading of the law and strengthens the position of the law as it is without reading any other explanation into it.

Justice Foster 

Justice foster applies the law of nature to find a way out of the law's statement. Since the explorers were under circumstances that they did not wish to do so and threatened by inevitable death, they had the moral obligation to decide how to overcome the crisis. This decision undermines the position of the law and if the decision was to be applied as a universal rule according to Kant's principle of ethical and universality 5 . All were permitted to take the lives of others, as nature permitted there would be many death cases that would warrant a reversal of Foster's ruling.

Justice Tatting 

Justice Tatting disagrees with Foster's decision and the applications of natural law arguing that this principle makes life a matter of contract and an inalienable right. Tatting is split between punishment and rehabilitation as the correct intent of a just law. He withdraws from making a final decision. The decision of cases is important for the propagation of equity and continuity of the law. By failing to make a ruling, she made a ruling in favor of the trial case that had convicted the explorers 6 .

Justice Keen 

Justice Keen’s separates the application of morality and decision-making 7 . As already noted, judges have a responsibility to adopt morality in the interpretation of the law. Or else, why are the law established! They only exist to guide the conduct of the public and the government in acceptable behaviors and these are morals.

Justice Handy 

Justice handy delegates the responsibility of the court to the public by recommending that the public opinion and the common sense of the public to be honored in the ruling. This opinion undermines the authority of the judiciary and the legislature and does not uphold the rule of the law. If any of the public would commit such an offense against the law, they would be freed as the public demands and not as the law states.

References

Emily Allbon and Sanmeet K Dua,  Elliott and Quinn’s English Legal System (19th Edition, Pearson Education Limited 2018) 701

Farber, D. A. (2005). The rule of law and the law of precedents. Minn. L. Rev., 90, 1173.

James Munby, “Law, morality and religion in the family courts” (2014) Ecc. L. J. 2014, 16(2), 131-139.

Lon L. Fuller, “The Case of the Speluncean Explorers” (1949)  Harvard Law Review . 62(4): 616-645

Waldron, J. (2009). Judges as moral reasoners.  International Journal of Constitutional Law , 7(1), 2-24.