I just entered the Oxford St Hughes College Law essay competition (half an hour before the deadline haha) and just wanted some feedback on it really.
“Are there any legal decisions which judges should not take”
Judges are a fundamental component of the legal system: they interpret the law without prejudice or passion, thus ensuring fair judicial decisions, independent of any external influences thereby making certain that the judiciary as a whole is unbiased, therefore ensuring anyone who finds themselves before the legal system can have faith in a fair trial, in full accordance with the law, which, in turn, upholds the rule of law and, principally, maintains faith in the legal system. In order for these to occur, judges must be, first and foremost, impartial and unbiased in all of their interactions with the law and have the requisite knowledge of areas in a case in order to interpret the law to its most accurate extent; where these attributes are not present, it could lead to a breakdown in faith for the legal system and therefore would not be appropriate for judges to be used.
Judicial activism can be defined as when judges make judicial decisions by thinking of the wider societal implications of their decision, instead of strictly interpreting and applying the law. It can be argued that when judges engage in judicial activism, it compromises the impartiality of judges in their decision-making process, like seen in the US when the Supreme Court interpreted the equal protection clause of the 14th Amendment in different ways as time progressed, so as to make liberalising decisions, like the constitutional right for homosexuals to marry (Obergefell v. Hodges 2015), or the constitutional right for women to have an abortion (Roe vs Wade 1973). By doing this, it can be seen as judges overstepping their democratic mark: in the US and UK, the judiciary cannot create legislation or any social policy, as this is power held by the elected Government. If the judiciary, who are unelected and unaccountable to the wider populace, make policy-altering decisions it can undermine the democratic process of the nation, by, in essence, ignoring the will of the people who elected politicians to make those same decisions, thereby creating a sense of disenfranchisement and, more crucially, a lack of faith in the legal system. If the populace believe they will not receive fair and impartial justice from the legal system, it can lead to an erosion in the rule of law, thus meaning civil and social disobedience may ensue, as well as perhaps vigilanteism, as people take the application of the law into their own hands, and therefore, since faith in the legal system is arguably one the key facets of the judiciary, undermining this with judicial activism could be extremely detrimental to society. Therefore, due to the potential of judicial activism leading to a loss in faith in the legal system, it may not be appropriate for judges to make interpretations of the law that have wide-ranging social consequences.
It can be argued that judicial activism serves a greater purpose within the legal system, and society as a whole. Many argue that judges engaging in judicial activism are vital to protecting individual civil liberties (as seen in Brown vs Topeka, for example) and highlighting governmental abuses of power through dismissing legislation that it perceives to be overreach of government power, and many argue that this is a necessary function to hold a check to the Government’s power. However this argument is itself flawed: whilst the potential for the the greater good exists, the potential for judges to manipulate legislation exists too, and the is a far greater danger to society. Whilst politicians are elected by the public, and exist as the extension of the public will when making legislation, judges are comparatively unaccountable to the wider public and therefore any government action could be seen as executing the wishes of the people, whereas
Citizens Advice define the right to a fair trial as right to a hearing which is: fair, public, heard by an independent and impartial court or tribunal, and crucially, heard within a reasonable time. According to a survey conducted by the UK government in 2018, the median time for cases in the Business and Property Courts to go from issue to trial was approximately 12 months, and according to a report by the Centre for Effective Dispute Resolution (CEDR) in 2018, the average cost of a commercial dispute in the UK is £45,000; from a societal perspective, this is detrimental to the nation. As a consequence of this increases time and money, this causes a breakdown in the faith in the legal system to resolve commercial disputes, and ,whilst this may not lead to any civil disobedience, this is detrimental to the nation as it disincentivises commercial business being done in the UK, which would have an adverse effect on the economy. Instead, perhaps alternative dispute resolution methods could be used, with independent 3rd party arbitrators or mediators that are acceptable to both parties used in place of judges. This would speed up the decision-making system, as both parties agreeing to a set time-frame of arbitration is more streamlined and efficient than the court process, as well as the fact that chosen arbitrators will most likely be experts in the specific area of the law in question, whereas a court judge may be not be. Therefore, the breakdown in faith of the legal system associated with excessive time and cost, as well as the general inefficiency of the court system in dealing with commercial affairs, perhaps warrant a system with arbitrators acceptable to all parties, in lieu of judges.
To ensure the most accurate interpretation of the law and the establishment of just precedents, judges must possess a deep and comprehensive understanding of the legal areas they preside over. Their expertise is crucial in upholding the integrity of the legal system. However, in rapidly evolving industries like the technology sector, especially concerning advancements in artificial intelligence (AI), judges may face challenges in keeping pace with the intricate nuances of these cutting-edge technologies. Given the relatively recent developments in AI and its associated laws, it becomes increasingly doubtful whether judges can possess the necessary level of knowledge to make informed decisions in such cases. This knowledge gap poses significant risks as it could raise doubts about the legitimacy of their rulings. If judges are perceived to lack the expertise needed to grasp the complexities of AI-related legal issues, their decisions may be met with scepticism and even criticised as ill-informed or biased. Furthermore, this lack of expertise may have wider consequences for the nation's legal system. In a tech-driven economy, where innovation and technological advancements play a pivotal role, uncertainty arising from inconsistent or inadequate legal interpretations could deter investors and businesses from pursuing technological innovations in the UK. The potential for a perceived lack of trust in the judiciary could further exacerbate this issue, leading to an unfavourable business environment that stifles growth and hinders the realisation of the vast economic potential that the technology industry offers, to the detriment of the nation as a whole. Therefore, in the face of ever-evolving industries like AI, it becomes crucial to address the potential knowledge gaps among judges to safeguard the integrity of the legal system. Perhaps, establishing specialised technology courts or panels comprising experts well-versed in AI and related laws could prove beneficial: these dedicated tribunals would not only enhance the quality and accuracy of legal decisions but also inspire confidence in the legal system from investors and businesses looking to innovate within the technology sector: since trust in the legal system is vital for the continued existence of the legal system, this would also have the effect of (by extension) also maintaining the rule of law.
Lastly, judges must approach decisions that could potentially infringe upon individual liberties with utmost caution and careful consideration. The Charlie Gard case stands as a prominent and poignant example that underscores the complexities judges face in balancing competing interests. In this emotionally charged case, the judiciary was confronted with the formidable task of determining what was in the best interest of a terminally ill child, while also considering the desires of the parents to pursue experimental treatment in the USA, requiring a delicate balance between upholding the sanctity of parental rights and ensuring the paramount consideration of the child's welfare and coming to the ultimate decision that further experimental treatment sought in the USA was unlawful; as Lord Sumption noted, this arguably had the effect of curtailing the individual rights of the parent to make the best decision for their child. Such cases hold the potential to erode public trust in the legal system, particularly when similar decisions are exercised frequently. The perception of the judiciary overstepping its boundaries and increasingly intruding into the private lives of citizens can set a worrisome precedent. When the public views the judiciary as progressively infringing on personal freedoms, it undermines the very fabric of a just and democratic society. The principles of individual freedom and self-determination lie at the core of democratic values, and the erosion of these principles could, in turn, lead to a broader erosion of faith in the rule of law itself. If citizens perceive that their fundamental rights are not being safeguarded by the legal system, it may foster a sense of disillusionment and disengagement with the institutions that are meant to uphold justice and protect individual liberties, thereby damaging the rule of law on a wider scale.
In conclusion, the question of whether judges should make certain decisions is a multifaceted and nuanced matter. The integrity of the legal system hinges on the pillars of impartiality, expertise, and the preservation of individual freedoms. Judges play a crucial role in upholding these principles and ensuring the prevailing of the rule of law in society. While judicial activism can serve noble purposes, such as safeguarding civil liberties and holding government powers in check, it must be exercised with caution to avoid overstepping democratic boundaries. Additionally, the efficiency and accessibility of the legal system are paramount in maintaining public trust. Excessive delays and costs in legal proceedings can erode faith in the judiciary and hinder societal progress, as can the challenges of keeping pace with rapidly advancing technology. To address these issues, alternative dispute resolution methods and specialised courts can effectively foster confidence in the legal system. Ultimately, the dedication of judges to these ideals upholds the very fabric of a just and democratic society, ensuring the preservation of fundamental rights and ensuring the continued faith of the people in the rule of law endures.