Law Reform Challenges: The Judicial Perspective

Law Reform Challenges: The Judicial Perspective This article addresses the topic of the challenge of law reform, giving a judicial perspective on the subject. The critical background for consideration of the scope for law reform in a common law jurisdiction is the legislative arrangements and procedures which apply in that jurisdiction. In this article, my focus is the position in England and Wales. I will discuss four modes of law reform, which each have their own particular challenges and present their own particular opportunities. The first is general legislative action. The second is legislative action pursuant to a report of the Law Commission. The third is by judicial action in the courts, by developing the law to meet perceived social needs and standards of behaviour. The fourth is by academic contribution, including in the form of publishing re-statements of general areas of the law. 1. GENERAL LEGISLATIVE ACTION In a sense, the first of these modes of law reform is the most obvious. It is the general function of the legislature to enact laws and by doing so to change the law. Changing the law in this deliberate way is in a certain sense to reform it. The legislature identifies a problem; it may take evidence or institute inquiries about the dimensions of the problem; ideally, it debates what is to be done to improve the situation; and then it promulgates binding laws to deal with the problem. The legislature is the body with authority in the legal system to make new laws and to change the law. But in another sense, this description of legislative activity is really too general to be an example—or a typical example—of law reform. Also, the lawyer’s standard picture of legislative activity is too idealized and does not correspond with reality. The idea of law reform in a specific sense suggests something more narrowly focused than passing laws to deal with social problems generally. Instead, what it points to is legal change to deal with a problem which has been identified in the functioning of the existing law. General legislative activity is not usually directed to this. The interface with politics is too raw. The time available in the legislature for legislative activity is too short. The legislature is not just there as a law-making machine, but as a forum for debate on political and social issues and to hold the executive to account for the exercise of its existing powers. In the legislature social problems tend to be identified through the political process and in a broad-brush way, rather than by plunging into the minutiae of the existing law to identify fine-grained problems with it. Legislation tends to be of a broad-brush or flagship kind. Instead of full deliberation, we tend to get truncated procedures which are necessary to enable the government to get its legislative programme through Parliament and to enable Parliament to perform its multiple functions. The government and Parliament respond to political exigencies and the taking of evidence may be perfunctory or non-existent. Striking examples of bad laws made by Parliament pursuant to some moral panic or other abound. The Dangerous Dogs Act 1991 tends to be taken as a signal case of legislating in haste to deal with today’s headlines in the tabloid press and repenting at leisure—or more accurately leaving it to the courts to do the hard work of trying to make a very imperfect piece of legislation work as best as possible in practice. Judged from a judicial perspective, all this makes law reform by general legislative activity feel rather random and badly thought out. Moreover, many judges have had the experience—I have had it myself—of identifying some problem in legislation in the course of giving judgment in a case, seeking to draw it to the attention of Parliament in the hope that legislation will be passed to rectify the position, and then hearing nothing further about it. It can feel like transmitting radio signals to the far off stars in the hope of a response one day, only to find that there is silence out there. Despite all these problems, general legislative activity and the constraints upon it still constitutes a good place to start when considering the challenges of law reform. That is because the very existence of the legislature as the authoritative body for changing the law has knock-on implications for the ability or freedom of other actors to do so, particularly the judges. An issue of legitimacy arises: if the legislature is the body with legitimacy as a democratic institution and with authority in the legal system to make or change laws, by what right will courts seek to do so? Or again, if one looks to the Law Commission as the basis for a model of law reform, it seeks to change the law by reporting and thereby seeking to persuade Parliament to act by making new laws as recommended by the Commission. The Law Commission model of reform therefore has to contend with the problems faced in trying to get the legislature to act. It does not offer a simple escape from them. As a judge, however, I should say at once that I think that the problems of law reform by general legislative activity reflect things which are properly part of an effectively functioning democratic politics. Although for a judge who has to grapple on the front line in the courts with the problems posed by inadequate or ill-judged legislation or by a common law which may seem frozen in the past the inaptness of general legislation to meet the concrete demands of law reform may feel frustrating, Parliament does not sit to take and pass legal exams to the satisfaction of the judiciary. Democracy is not just about law and the making of law. Parliament’s role is not primarily to keep the judges happy with the laws it produces—though the more it can do so while achieving other objectives, the better. The limits of general legislative activity for achieving systematic law reform derive from a number of sources. In the first place, it is desirable, indeed necessary, to have a legislature with limited membership and time available. That provides a good focus for the public functions it fulfils. People know who their representatives are and can look to them for action across a range of fronts. The broad-brush or flagship nature of legislation is attuned to a busy and distracting social and political environment.1 The broad brush is often necessary so the citizenry can see what is being done in their name. The broad brush is also necessary to enable party politics to function effectively, so that people can know what a party is proposing to do and then be able to hold it to account afterwards. In a parliamentary system, Parliament’s functions are inevitably much wider than law-making, so there is bound to be pressure on parliamentary time from other important activities. As mentioned above, parliamentary time is rightly taken up with holding ministers to account for what they are doing in office. Parliament is the site for the prime minister to defend the actions of herself and her government. It is the site for playing out the high politics in the state: if a prime minister loses a vote of confidence in Parliament, the government falls. This feeds into a more profound reason why general legislative activity in Parliament is not an ideal vehicle for law reform. Politics is not just about the rational resolution of problems in society. It is also about containing and giving effect to the irrational—or more accurately, the non-rational—aspects of politics; what the political theorist John Dunn has called ‘the cunning of unreason’.2 It can be said that the mark of a healthy constitution is not that it is founded on agreement in politics; indeed, disagreement in social life is the point from which politics begins. Rather, it is its capacity to cope with disagreement, to enable people who do not agree about important things to live together peaceably.3 Parliament, as the stage of politics and the primary site for political action, has to operate in ways which enables this to happen. The main way in which it does this is by settling disputes by majority voting procedures. People do not agree and cannot be made to agree by the standards of rational thought. There is plenty about which people can rationally disagree, and when they do a vote is taken.4 Therefore, Parliament is not a place where deliberation produces a single common view of the public good and a single common view of how to legislate. Certainly, ideally, deliberation should play a part and consensus should be achieved where that is possible. But there remains wide scope for political disagreement to prevail, and then what is called for is a decision about how to proceed. That is arrived at by a majority voting procedure. Parliament has authority within our political system to take decisions and to lay down laws on the basis of that authority. At bottom, we have the age-old tension in politics and public law between reason and authority, deliberation and decision. The courts are used to looking for reason, but the legal system requires them to acknowledge the simple decision-making authority of the legislature. The decisionism in Parliament’s law-making is manifested in the way in which no authoritative statement of the rationale for a statute or its intended effect is produced on behalf of the legislature. At most, beyond the statute itself, we can have resort to certain ministerial statements in some circumstances, for example, if the statutory provision is ambiguous.5 Yet, despite this, reason does have a role to play in the law. At some level, reason supplies a part of the legitimacy of law alongside authority and pure democratic decision. A law without reason risks losing public understanding and acceptance. The courts cannot be oblivious to this danger. The possibility of an inverse interrelationship between the legitimate scope for judicial law-making and the availability of law reform through the legislature has been remarked upon many times. The famous American judge, Benjamin Cardozo, pointed out that the relationship between judges and the legislature changes over time.6 Judges had in earlier times felt more able to make law themselves, but their willingness to do so was affected in more recent times by the ready availability of the legislative process to change the law when it is perceived that change is required. He quoted another famous American judge, Oliver Wendell Holmes, who said, ‘… judges must and do legislate, but they do so only interstitially …’.7 The previous perceived freedom of judges to legislate in this way is narrowed by the ready availability of a legislature ready and able to act to make law itself, especially when it is the bearer of democratic legitimacy. Another American judge echoed Cardozo on this. In a lecture in 1942, entitled ‘The contribution of an independent judiciary to civilization’, Justice Learned Hand emphasized the importance of judicial independence to give effect to enacted law as representing the real accord reached through the political system.8 In relation to customary and common law he observed that previously judicial law-making was tolerated because the legislature was slow to act and judges represented the governing classes and their worldview; but now it is comparatively easy for legislation to be made and the judges do not have such a representative role, so they should just seek to make interstitial advances when developing the law. This interaction between the availability of legislative action and the willingness of courts to be their own legislators and law reformers has been rather obscured. The limited role of modern courts seems reasonably settled because the political environment has been reasonably settled. But one does detect it at some points. It does not take much imagination to think that the activism of the European Court of Justice in some phases of its jurisprudence has been informed by a sense that the legislative institutions of the European Union (previously the European Communities) are weak and can be slow to respond to problems, it can be difficult to enact new legislation and the institutions have comparatively low democratic legitimacy. In the UK context, it is not impossible that we may be entering a new phase with Brexit. Brexit is absorbing huge amounts of parliamentary time to try to re-legislate across the board to achieve a smooth transition, which makes Parliament less available as a legislature to deal with mundane programmes of legislative reform in the ordinary way.9 I return to the role of the courts as law reformers below. But before that, I will consider the second model: legislation following a report and recommendation of the Law Commission. 2. LEGISLATION PURSUANT TO LAW COMMISSION RECOMMENDATIONS In theory, this is the most attractive model for law reform. However, there are practical limitations which mean that its promise is only partly fulfilled. The Law Commission is an impressive body. It is independent of government. It is chaired by an eminent judge, drawn these days from the Court of Appeal.10 It is composed of commissioners who are eminent practitioners or academics in their fields. They have teams of qualified researchers of high quality who report to them and draft reports. The Commission can carry out detailed research and consult widely with all relevant actors, thereby overcoming one of the principal constraints upon legislative action by courts, which only hear from the parties to the dispute before them and may be oblivious to the wider dimensions of polycentric problems which may lie at the heart of working out what, overall, is the best general legal solution for a particular problem. Further, the Law Commission’s specific focus is law reform. It is tasked with keeping the general law under review, although it has limited resources to do so.11 Unlike Parliament under the general legislative model, the Commission is directed to examine the intricate workings of the law in detail and has the informed understanding to be able to do so. When the Law Commission reports and its recommendations are technical and uncontroversial, parliamentary procedures are truncated to allow for a speedier passage of legislation to implement the reforms which it recommends. In this, they follow the pattern of truncated parliamentary procedures used for the enactment of technical and uncontroversial consolidating legislation. Where legislation is adopted as proposed by the Law Commission in a report, the courts are provided with a detailed legislative explanation of the rationale for the provisions of the statute on which they can draw for the purposes of interpreting it. In a sense, reason and authority are then united. Why then is the Law Commission model not the simple answer to the challenge of law reform? The main reason, I think, is that it cannot escape the political limitations inherent in the general legislative model.12 Historically, the Achilles heel of the Law Commission was that the government, which exercises large control over the legislative programme in Parliament, would not make time available to implement its reports. All too often they proved to be very learned exercises in futility. Parliamentary time is a scarce resource and successive governments with pressing political priorities would not spend it on worthy but boring exercises in law reform. Still less would governments be willing to spend parliamentary time on Law Commission projects if by chance they were not boring and there was any atmosphere of controversy around them, for controversy engenders contestation in Parliament and this sucks up parliamentary time. More recently, an attempt has been made by the Law Commission to avoid the futility which had bedevilled its previous efforts. A protocol was agreed with government in 2010 whereby the government gives an indication in advance of departmental support for Law Commission projects and gives a commitment to make departmental resources and legislative time available to implement the resulting reports and recommendations. However, valuable though this is, it tends to push the boundary of political constraints further forward in the legislative process to the stage of negotiation with the government under the protocol, rather than at the stage of deciding what to do after reception of a final report. This is something of an antidote for futility, but it tends to confine the Law Commission to the bland and uncontroversial in terms of the topics which it is agreed it should handle. That is both because governments are wary of spending scarce parliamentary time too generously in advance and also because they are wary of conceding the prerogative of government in the legislative process, which is the ability to take the initiative in identifying those topics which are sufficiently currently controversial to merit consideration in Parliament and also to frame the terms in which they should be debated and addressed. Government can also withdraw its support and resources part way through a project. Added to these limitations are the limited resources of the Law Commission and the potential magnitude of the tasks given to it. The detailed research and consideration which is needed for the Commission to produce a thorough and persuasive report and set of recommendations to cover a general area of law is considerable. The Law Commission can only undertake a small number of projects at any one time as part of a defined programme specified 3 years in advance. It is not designed to react and is not capable of reacting to minor specific instances of legal problems identified in the course of litigation. In a way, the attraction of the Law Commission model for judges reflects a simple judicial desire to have their lives made easy and is no surprise. If reason and authority can be married up together by means of a detailed, technical and carefully considered report by the Law Commission and then its recommendations for legislation being enacted by Parliament, the courts’ task in interpreting legislation is made simpler. The Law Commission report becomes a very helpful aid to construction. Constructing a definitive meaning for a statutory provision which enables it to be applied to resolve a real-life dispute before the courts can be a difficult thing to achieve. In truth, it is the product of a sensitive bringing into account of a variety of factors, including its language, its place in the scheme of the legislation, the context in which it was enacted, the mischief at which it was aimed and background values which Parliament is to be taken to have intended to respect. Law Commission reports assist the courts in that task, but only up to a point. The authoritative legal instrument remains the statute, not the report which lies behind it. And the report may be as opaque as the statute on the resolution of specific disputes which come before the courts. So, for political reasons the scope for application of the Law Commission model is restricted; and for legal reasons, it may not provide the answer to every legal problem the courts encounter. This brings me to the third potential agent of law reform, the courts themselves. 3. JUDICIAL ACTION IN THE COURTS: DEVELOPMENT OF THE LAW BY THE JUDGES In the difficult cases where the legal position is unclear—that is, the kind of cases which tend to come before the courts—there is always a gap between the general statement of the relevant rule of law and its actual application to the dispute in hand. That is so whether the rule is taken from a statute or from leading cases. The courts have agency and decision-making power in that gap to push the law in a particular direction, and thereby minimize or find ways around legal problems that seem to exist. Moreover, at the apex of the court system, the Supreme Court has power to overrule previous authority and to correct legal problems identified as errors of law more directly. So how active should the courts be in the task of law reform? The crude answer, I suggest, is: ‘a little, but not a lot’. There are five principal constraints on the courts as agents of law reform. The first is their own obligation to follow precedent and maintain doctrinal coherence in the interests of ensuring reasonable standards of predictability in the law and promoting rule of law values and absence of capriciousness in the exercise of public power. The second is the limitations of the litigation process: cases are thrown up randomly and the courts may never see or have to rule upon legal issues which are in fact causing problems in society at large. Third, the courts do not have democratic legitimacy to change the law. It is Parliament that has that, and since the courts are aware that Parliament exists as a democratic institution with the very task of changing the law, they have to ensure that they do not trespass upon its functions and that they do not undermine democratic rule by acting too precipitately or too forcefully to change the law themselves. Fourth, the courts have limited resources to examine problems of law reform from every angle and to assess the possible impact of changes in wider society. Law is not just a function of what judges do in the court-room. The whole law-in-context movement is there to remind us that law is followed and applied in society at large in ways that never come before a court but which have profound effects on people. The courts are presented with only limited information about legal problems, depending on how the parties to a dispute choose to fashion their arguments. Government, on the other hand, as the principal promoter of legislation, and Parliament itself have means of making wider investigations to look in the round at the merits of changing the law. Fifthly, there is the problem of the sheer ubiquity of statute within the modern legal system as the principal form of law which regulates society. Courts do not have power to overrule or change statutes. Their powers of interpretation of statutes are heavily confined by the language of the legislation and legal principle. The result of all this is that the courts can and should alter the law only very cautiously and subject to constitutional limits on their powers. They should do so only where there is compelling reason to do so and where they can really be confident that they are improving the law while keeping it aligned with fundamental doctrinal principles. Lord Bingham stated it in this way: The courts are wary about changing the law where it is likely people have ordered their affairs on the basis of the pre-existing understanding of the law, where amendment of a rule appears to require a detailed legislative code, where the question involves an issue of current social policy on which there is no consensus within the community, where an issue is the subject of current legislative activity and where the issue arises in a field far removed from ordinary judicial experience.13 The judges are the guardians of the law and must be seen to act as such. But that role covers both the loyal application of any clearly identified positive rule of law and the coherent development of legal doctrine when addressing new cases or where the existing legal framework requires interpretation or fresh articulation of common law standards. The underlying issue is always one of what it is legitimate for the courts to do. Many factors bear on this and context is critical. Indeed, sensitivity to the different contextual factors which may be in play in a case is at the heart of what makes for a good judge. That is particularly true at an appellate level. Because context is so important, one has to speak about broad themes or tendencies rather than in absolute terms. There are important differences between public law and private law which bear upon what it is legitimate and proper for a judge to do in stating and developing the law. Also, there are significant differences between the courts’ role when applying the common law and when applying statute, although sometimes they can resemble each other closely. Constitutions in modern societies seek to balance two different traditions. The courts have to uphold that balance. Sometimes they have to do so while it feels that the ship of state is out on the open seas and the forces upon it are shifting and changing and the timbers are creaking. First, there is the democratic tradition: government by the people and for the people. Secondly, there is the liberal constitutional tradition of human rights, rule of law and preventing the tyranny of the majority.14 Often the two traditions pull in different directions. The courts—and above all the Supreme Court—have a central role in holding them in a workable and coherent balance through the articulation of legal doctrine. The balance and the legal process through which it is reached have to be perceived as legitimate and regarded as acceptable by society as a whole. The courts have to use ways of resolving disputes which will command confidence and respect. Democratic principle is the dominant side of the equation for historic and philosophical reasons. Judges have to take care to be seen to be politically impartial and to be loyal to laws laid down through the democratic process. But at the same time they are responsible for ensuring that fundamental principles of the constitutional order are respected. The law structures democratic processes in different ways across a spectrum of issues. Sometimes it provides the hard-edged grammar which is necessary for democracy to be able to work: for example, specifying who is entitled to vote and what are the criteria for something to count as legislation. Sometimes the concern will be to safeguard the background scheme of rights which make democracy itself legitimate, for example, through protection of rights of free speech and free association. But here the courts’ role overlaps with that of democratic institutions, which will set out their own views on the proper ambit of rights and individual protections. So the courts have to proceed with care if they find themselves counter-posing their views on these matters against assertions by government or through interpretation of legislation. They need to be able to explain and justify their statements of law by reference to accepted sources to demonstrate the legitimacy of what they do. In addition, sometimes it will be appropriate for the courts to articulate legal doctrine in ways which promote standards of democratic deliberation. Examples of this include the principle of legality, according to which Parliament can choose to override basic rights but only if it squarely faces up to this and makes its intention crystal clear15; and also the way in which human rights doctrine treats the margin of appreciation for government and Parliament as widened where there has been informed public and parliamentary debate about the issues.16 It may be easier for a court to demonstrate the legitimacy of developing the law in this sort of situation, because it is trying to reinforce the democratic principle. Conversely, Parliament may itself have given democratic legitimacy to the role of the courts in seeking to apply liberal rule of law values and human rights. The prime example of this in English law is the Human Rights Act 1998, and the strong obligation set out in section 3 for the courts to interpret legislation so that it is compatible with human rights. That obligation is reinforced by the further obligation imposed under section 2 to have regard to the case-law of the European Court of Human Rights. Section 3 creates a sort of statutory power to review and amend the statute book to achieve compatibility with human rights.17 On the whole, this has been a very successful enterprise. But it should be emphasized that it has been mandated by Parliament itself. Of course, however, sensitive issues remain regarding how the courts should interpret or define human rights in a democratic environment. This perspective is particularly important in public law, because there the courts are so close to the fire in the democratic and political kitchen and have to take care not to get burned. But it is also significant in private law. Parliament is the democratic institution with authority to change the law by legislation. It is able to receive evidence from multiple sources to work out what is best for society and it is able to create comprehensive and coherent legal regimes by a single act of authorship. Since Parliament is the institution with authority to change the law, one may ask: what is the authority of the courts to develop the law through interpretation and articulation of legal doctrine? Developing the law is also to change it. Again the issue is, how far is it legitimate for the courts to go in doing this themselves rather than throwing up their hands if there is a problem and leaving it to Parliament to deal with it? As Cardozo noted, there is scope for some interplay here between the extent to which there is ready access to Parliamentary time to legislate to correct problems as they emerge and, if that is difficult, perhaps an increased willingness on the part of the courts to develop the law themselves. It is also relevant that the courts have technical expertise to understand how complex legal rules work together and practical experience of seeing the law in operation. Depending on the context, this may mean that they feel well placed to make small incremental improvements as they state and develop legal rules. The other important dimension affecting the proper role of the courts in developing the law is the distinction between common law and statute. At the risk of gross simplification, the common law tends to be particularly important in the sphere of private law and statute law tends to be particularly important for public law. The courts are the custodians of the common law and are trusted by society to develop it. This is because they are subject to important constraints and disciplines in doing so. They do not act as free legislators. Instead they are to have regard to precedent. Also, since precedent is only a partial guide, it is significant that they are the interpreters of a legal tradition working within a legal culture comprising the legal professions and academic commentators.18 The need for courts to justify what they do to that technically trained legal audience as well as to society as a whole is an important discipline and ensures that rule of law values are adhered to. The legal culture generates objective standards to which the judges have regard and by reference to which they can be held to account. Also, as Cardozo put it: ‘The inscrutable force of professional opinion presses upon us like the atmosphere, though we are heedless of its weight’19 As a result of the constraints provided by rules of precedent and the effort to operate within a tradition and to satisfy standards set by the legal culture, people have reasonable notice of the likely reaction of the courts to particular cases. At the same time the courts have a reasonable degree of latitude to develop existing principles to deal with new cases and improve doctrinal coherence. Lord Mansfield described this as the law ‘working itself pure’.20 The Supreme Court has a particular responsibility here. It has to provide guidance as the apex court within the legal system and it has formal power to depart from precedents which it thinks should not be followed. It has been observed that the value of the doctrine of precedent rests in its capacity simultaneously to create constraint and allow a degree of discretion. There is a strong but rebuttable presumption that earlier decisions act as guides for present action, but not to the extent that judges must maintain outdated attitudes and a commitment to repeating their predecessors’ mistakes.21 Lord Reid said in a lecture in 1972: ‘People want two inconsistent things; that the law shall be certain, and that it shall be just and shall move with the times. It is our business to keep both objectives in view. Rigid adherence to precedent will not do. And paying lip service to precedent while admitting fine distinctions gives us the worst of both worlds. On the other hand too much flexibility leads to intolerable uncertainty.’22 Quite where one should strike the balance will be highly dependent on context. Reasonable alignment with background morality and values in society provides legitimation for common law rules.23 The common law is not legitimized by democratic choice, nor under modern conditions by simple long usage. The reflection of current social expectations and standards of fair dealing in private law is important both to ensure respect for and observance of law by the public. It also ensures that the law fulfils a practical guidance function for social interactions. People dealing with each other will not know the intricacies of the law, but they will have a broad sense of what it is fair to expect. The law should support that sense, since it enables people to plan their lives with confidence about how they will be treated if they have to turn to the law. The law should be unashamed in appealing to standards of reasonable behaviour, as it does. It should also be willing to adjust the standards applied in line with changing social expectations, both at the level of deciding what an open-textured term like reasonableness means in practice and in re-stating more hard-edged legal rules where the old rules have clearly come adrift from current social standards. Therefore, under certain conditions, there is not just a power but also a need to change the common law to keep pace with society. However, this poses its own problems, given the uncertainty and contestability of moral standards and social values. There is no simple solution to this conundrum. The common law does not license judges to impose their own personal moral or other standards, but requires them to look for standards which have general support in society. The existing common law supplies a basic stock of general moral principles, revolving around core values of the protection of property, promotion of promise-keeping and enforcement of reasonable behavioural social standards. Respect for these values is important both for doctrinal coherence and predictability and for objectivity and legitimacy in judicial decision-making. Beyond these resources, judges seek to behave as well-informed and intelligent interpreters of society, focusing so far as possible on well-recognized basic standards of interpersonal relations. They may feel more confident in orienting themselves where an overlapping consensus of different social values and moral views points to likely widespread acceptance of particular outcomes. But judges do not have special moral insight or ability to assess social need. They also have to be alert to the availability of explicit forms of law reform via legislation by Parliament, as pointed out above. Therefore, pre-existing law should be applied except when it becomes very clear that to do so would offend against prevailing conceptions of morality or social values. There is thus a threshold or tipping point where a head of pressure builds up for judicial change or adaptation of the common law to keep pace with current social values, beyond which change in the law becomes legitimate as an acceptable safety valve. Only when sufficient pressure builds up from background morality and social values can a judge properly feel confident that it is right to make an incremental adjustment in the existing law. Clearly, just as it is a matter of judgment to identify relevant general moral and social values, it is a matter of judgment as to when this tipping point has been reached. There is no formula which can take the place of the sensitive exercise of judgment by the judge him- or herself. Cardozo tried to capture the tipping point with this formulation: ‘The common will must have made itself known for so long a time as well as in so distinct a manner as to have gained stability and authority’24 This is very far from authorising the courts to act as a roving agent of law reform, changing the common law at the drop of a hat whenever individual judges conclude that the law is not in an optimal state. In relation to statutes, the courts are interpreters of legislation created by Parliament. They act as the agents of Parliament, seeking to understand and then carry out Parliament’s will and intention. This narrows down the legitimate scope for the courts to develop the law themselves. However, particularly in the field of public law, there is in fact considerable scope for the courts to read legislation as subject to fundamental constitutional values which are identified and elaborated by the courts. The courts can find legitimacy in doing this by postulating that Parliament—which is a fictional person—is presumed to be a body which intends to legislate in a way which is respectful of important constitutional values.25 One example is the way in which the courts read legislative powers which affect individuals in detrimental ways as subject to a duty on the executive to act fairly, as in the famous case of Ridge v Baldwin.26 The fact of implication of such a duty in the first place is significant. But so is the open-textured nature of the duty. The courts have legitimacy in stating what is fair in any particular situation, and they develop fairness standards over time to reflect changing social expectations in the same way as they develop the common law. Another example is the principle of legality which I have already mentioned. Here the courts identify important constitutional rights or values by reference to certain evidence and arguments and postulate a strong presumption that Parliament intended its legislation to be read subject to those values. This is a very powerful legal step by the courts, equivalent to the impact of section 3 of the Human Rights Act but without express statement by Parliament of the interpretative principle and without express identification by Parliament of the rights in question. So the courts need to take care when using the principle of legality to explain clearly how they identify the fundamental right in question and to justify its effect by explaining that it is plausible that Parliament, in legislating for a liberal democratic state, intended to take it into account.27 By these conceptual means and others, the English courts have in a general sense reformed the public law which governs the activities of the administrative state. They have been active in laying down the values and standards to which the executive must adhere when exercising statutory powers. English public law looks very different indeed now from how it looked 50 years or even 20 years ago. Public authorities must act fairly, and the courts have specified the standards of fairness which apply. They must also respect constitutional and human rights when they act, and the courts have become active in specifying those rights and giving them concrete force in the process of statutory interpretation. However, I do not think that this general movement of reform—important though it undoubtedly is—qualifies as law reform in the more narrow sense on which I have been focussing in this article. There has been no process of the courts coming across specific legal rules which do not work well and then making a conscious decision to reform those rules. Nor is it easy to see how the courts could do this. Most of the time the specific legal rules are contained in statute, and the courts have no authority to change or override statute. Instead, the process has been of a very different kind. It has been a process of the gradual recognition—some might say, the gradual injection—of background substantive standards of administrative behaviour which are taken to be incorporated by implication into statutory regimes in public law. So the overall assessment of the model of law reform by the courts is that it occurs only very patchily and is subject to the major limitations referred to above. There can in reality be no question of the courts taking on a general role as an agency of law reform, whatever the practical difficulties of ensuring that the legislature fulfils that role itself. 4. ACADEMIC COMMENTARY The fourth possible means of law reform under review here is by academic commentary, and in particular sustained academic restatements of areas of the law to try to give it coherence and a sustainable underlying rationale. Conceptual coherence in public and private law is an important consideration. This is because it serves rule of law values, in that legal advice in relation to some new situation can be given with greater confidence if the law has a coherent shape and scheme, so people can plan their lives. Conceptual coherence is also important to avoid capricious and unjust distinctions arising in the law, which would undermine its legitimacy in society and its value as a guide to conduct. Judges working day to day under pressure to get out their judgments know this. But they do not always have the luxury of time to conduct complete reviews of the general terrain of the law when reaching their decision on a small part of it. They are therefore conscious of the important contribution which the legal academic community makes in providing sustained general over-views of whole fields of the law. These can be invaluable in helping judges to orientate themselves and to identify the underlying principles to apply and develop. Thus, for example, the importance of the US Restatements of the law cannot be over-emphasized as a spur to legal development in the United States and elsewhere too. Benjamin Cardozo was at the forefront in calling for this kind of contribution when he wrote in 192428 that there was a need for a scientific restatement of the law to bring order out of ‘the wilderness of precedent’. With the volume of cases coming through, the result was that ‘the citation of precedent is tending to count for less, and appeal to an informing principle is tending to count for more’. Modern conditions make that observation even more true today. Therefore, he wrote, ‘More and more we are looking to the scholar in his study, to the jurist rather than to the judge or lawyer, for inspiration and for guidance’. Again, this comment remains apt today. In the United Kingdom, Professor Andrew Burrows has taken up and adapted the restatement model, with succinct, accurate and easy to use statements of the law of unjust enrichment and contract.29 Interestingly—and effectively—he has used a model of writing the text himself, to maintain the greatest coherence, but with the benefit of advice from an advisory panel which includes some judges. All this is of great value. However, enough has been said above to indicate that this form of academic contribution is remote from specific and focused law reform in the narrow sense. It is best understood as a form of advice to judges to guide them in their decision-making and their formulation of legal principles. It may well make a contribution to making a judge feel confident in identifying that the tipping point has been reached at which a change in the common law is justified. But it does not enable or empower the judge to step outside the limits of his or her role in developing the common law. 5. CONCLUSION From a judicial perspective, there is no simple solution to the problem of law reform. The theory is clear: the legislature ought to be the prime agent of law reform because it has the constitutional mandate to change the law. But there are practical political reasons why it cannot spend all its time on law reform. Nor are those reasons necessarily to be seen as bad. The Law Commission has proved to be a less than fully satisfactory solution, essentially because it can only operate through the legislature and therefore cannot escape the political factors which impede the legislature in acting. The resources available to it, both in terms of staff and parliamentary time, are limited. It would require a political decision to increase them and make the work of the Commission, valuable as it is, more effective. But that would involve weighing the claims of general law reform against other governmental and parliamentary priorities. The courts have no general mandate to change the law at will or to act as agents of law reform. They can only develop the law cautiously by carefully identifying and clarifying underlying principles. This may feel frustrating, but there are important constitutional reasons why it should be so. Footnotes * Lord Justice of Appeal, England and Wales. This article is based on a lecture given at the Chinese University of Hong Kong on 21 September 2017. 1 For discussion of the inherent tension between the different disciplines of the law and politics in relation to legislation, see S Laws ‘Legislation and Politics’, ch. 5 in D Feldman (ed) Law in Politics, Politics in Law (Oxford: Hart Publishing, 2013); and see D Runciman Politics (London: Profile Books Ltd, 2014), 90–91 (‘In politics, once you’ve made what you think is the right decision, you still have to convince other people of your right to make that decision … To succeed in politics requires a tolerance for uncertainty and an understanding of confusion’). 2 J. Dunn The Cunning of Unreason: Making Sense of Politics (London: HarperCollins, 2000). 3 As David Feldman writes, ‘… democracy and constitutions are not about securing agreement. They are concerned with managing disagreement’, in Feldman, n 1 above, p. 261; cf B Williams In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton: Princeton University Press, 2005); W Rasch Sovereignty and its Discontents: On the Primacy of Conflict and the Structure of the Political (London: Birkbeck Law Press, 2004). 4 See e.g. R Tuck Free Riding (Cambridge Mass: Harvard University Press, 2008) and The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge: Cambridge University Press, 2016), 260 (‘… if we continue to think in terms of agency then majoritarianism remains an obvious way of structuring politics’); Williams, n 2 above, p. 13 [‘A very important reason for thinking in terms of the political is that a political decision—the conclusion of a political deliberation which brings all sorts of considerations, considerations of principle along with others, to one focus of decision—is that such a decision does not in itself announce that the other party was morally wrong or, indeed, wrong at all. What it immediately announces is that they have lost’ (emphasis in original)]. 5 Pepper v Hart [1993] AC 593. 6 B Cardozo The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 28 and 60–61; this is also a theme in L Jaffe English and American Judges as Lawmakers (Oxford: Clarendon Press, 1969). 7 Ibid at 69, quoting Southern Pacific Co. v Jensen, 244 U.S. 205, 221. 8 L Hand The Spirit of Liberty: Papers and Addresses of Learned Hand (ed. Irving Dilliard. New York: Knopf, 1954), ch. 20. 9 Cf Jaffe, n 6 above, 84 (‘… even in a parliamentary democracy a vigorous, independent judiciary can make important contributions to the solution of problems demanding lawmaking … Our legislatures are grossly over-burdened. Courts can assist them and can provide the stimulus for law reform’). 10 The current chair is Lord Justice Bean. 11 See the website of the Law Commission for England and Wales at www.lawcom.gov.uk. 12 For discussion, see E Cooke and H Macqueen ‘Law Reform in a Political Environment: The Work of the Law Commissions’, ch. 9 in Feldman, n 1 above; also the Rt Hon. Lord Justice Lloyd Jones, ‘The Law Commission and the Implementation of Law Reform’, Sir William Dale Annual Lecture 2012, on the Law Commission website, n 11 above (4 October 2017). 13 Lord Bingham ‘The Judge as Lawmaker: an English Perspective’, in P Rishworth (ed) The Struggle for Simplicity in the Law: Essays for Lord Cooke of Thoroton (Wellington: Butterworths, 1997); also see L Dyson ‘Where the Common Law Fears to Tread’ (2013) 34 Stat LR 1. 14 J Tully ‘The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy’ (2002) 65 MLR 204; G Webber The Negotiable Constitution: On the Limitation of Rights (Cambridge: Cambridge University Press, 2009); P Sales ‘Law and Democracy in a Human Rights Framework’, ch. 15 in Feldman, n 1 above. 15 R v Secretary of State for the Home Department, ex p. Pierson [1998] AC 539; R v Secretary of State for the Home Department, ex p. Simms [2000] 2 AC 115. 16 E.g. Animal Defenders International v United Kingdom (2013) 57 EHRR 21, GC; cf Hirst v United Kingdom (No. 2) (2006) 42 EHRR 41, GC. For discussion, see Sales, n 14 above. 17 P Sales and R Ekins ‘Rights-consistent Interpretation and the Human Rights Act 1998’ (2011) 127 LQR 217. 18 See e.g. K Llewellyn The Common Law Tradition: Deciding Appeals (Boston: Little, Brown and Company, 1960), 185–186. 19 B Cardozo The Growth of the Law (New Haven: Yale University Press, 1924), 61. 20 As counsel in Omychund v Barker (1744) 1 Atk 21, 33; 26 ER 15, 24. 21 N Duxbury The Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008), 183. Justice Cardozo said a judge must constantly keep an eye on ‘the equilibrium between precedent and justice’: The Paradoxes of Legal Science (New York: Columbia University Press, 1928), 30. 22 Lord Reid ‘The Judge as Law Maker’ (1972) JSPTL 22, 26. 23 The text of the next four paragraphs is drawn from a lecture on the common law delivered at Renmin University in Beijing in September 2016, to be published. 24 Cardozo, n 21 above, 51. 25 P Sales ‘A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998’ (2009) 125 LQR 598. 26 [1964] AC 40. 27 P Sales ‘Rights and Fundamental Rights in English Law’ (2016) CLJ 86. 28 Cardozo, n 19 above, 5 and 11. 29 A Burrows A Restatement of the English Law of Unjust Enrichment (Oxford: Oxford University Press, 2012) and A Restatement of the English Law of Contract (Oxford: Oxford University Press, 2016). © The Author 2017. Published by Oxford University Press. All rights reserved. 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Law Reform Challenges: The Judicial Perspective

Statute Law Review , Volume Advance Article – Nov 20, 2017

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Abstract

This article addresses the topic of the challenge of law reform, giving a judicial perspective on the subject. The critical background for consideration of the scope for law reform in a common law jurisdiction is the legislative arrangements and procedures which apply in that jurisdiction. In this article, my focus is the position in England and Wales. I will discuss four modes of law reform, which each have their own particular challenges and present their own particular opportunities. The first is general legislative action. The second is legislative action pursuant to a report of the Law Commission. The third is by judicial action in the courts, by developing the law to meet perceived social needs and standards of behaviour. The fourth is by academic contribution, including in the form of publishing re-statements of general areas of the law. 1. GENERAL LEGISLATIVE ACTION In a sense, the first of these modes of law reform is the most obvious. It is the general function of the legislature to enact laws and by doing so to change the law. Changing the law in this deliberate way is in a certain sense to reform it. The legislature identifies a problem; it may take evidence or institute inquiries about the dimensions of the problem; ideally, it debates what is to be done to improve the situation; and then it promulgates binding laws to deal with the problem. The legislature is the body with authority in the legal system to make new laws and to change the law. But in another sense, this description of legislative activity is really too general to be an example—or a typical example—of law reform. Also, the lawyer’s standard picture of legislative activity is too idealized and does not correspond with reality. The idea of law reform in a specific sense suggests something more narrowly focused than passing laws to deal with social problems generally. Instead, what it points to is legal change to deal with a problem which has been identified in the functioning of the existing law. General legislative activity is not usually directed to this. The interface with politics is too raw. The time available in the legislature for legislative activity is too short. The legislature is not just there as a law-making machine, but as a forum for debate on political and social issues and to hold the executive to account for the exercise of its existing powers. In the legislature social problems tend to be identified through the political process and in a broad-brush way, rather than by plunging into the minutiae of the existing law to identify fine-grained problems with it. Legislation tends to be of a broad-brush or flagship kind. Instead of full deliberation, we tend to get truncated procedures which are necessary to enable the government to get its legislative programme through Parliament and to enable Parliament to perform its multiple functions. The government and Parliament respond to political exigencies and the taking of evidence may be perfunctory or non-existent. Striking examples of bad laws made by Parliament pursuant to some moral panic or other abound. The Dangerous Dogs Act 1991 tends to be taken as a signal case of legislating in haste to deal with today’s headlines in the tabloid press and repenting at leisure—or more accurately leaving it to the courts to do the hard work of trying to make a very imperfect piece of legislation work as best as possible in practice. Judged from a judicial perspective, all this makes law reform by general legislative activity feel rather random and badly thought out. Moreover, many judges have had the experience—I have had it myself—of identifying some problem in legislation in the course of giving judgment in a case, seeking to draw it to the attention of Parliament in the hope that legislation will be passed to rectify the position, and then hearing nothing further about it. It can feel like transmitting radio signals to the far off stars in the hope of a response one day, only to find that there is silence out there. Despite all these problems, general legislative activity and the constraints upon it still constitutes a good place to start when considering the challenges of law reform. That is because the very existence of the legislature as the authoritative body for changing the law has knock-on implications for the ability or freedom of other actors to do so, particularly the judges. An issue of legitimacy arises: if the legislature is the body with legitimacy as a democratic institution and with authority in the legal system to make or change laws, by what right will courts seek to do so? Or again, if one looks to the Law Commission as the basis for a model of law reform, it seeks to change the law by reporting and thereby seeking to persuade Parliament to act by making new laws as recommended by the Commission. The Law Commission model of reform therefore has to contend with the problems faced in trying to get the legislature to act. It does not offer a simple escape from them. As a judge, however, I should say at once that I think that the problems of law reform by general legislative activity reflect things which are properly part of an effectively functioning democratic politics. Although for a judge who has to grapple on the front line in the courts with the problems posed by inadequate or ill-judged legislation or by a common law which may seem frozen in the past the inaptness of general legislation to meet the concrete demands of law reform may feel frustrating, Parliament does not sit to take and pass legal exams to the satisfaction of the judiciary. Democracy is not just about law and the making of law. Parliament’s role is not primarily to keep the judges happy with the laws it produces—though the more it can do so while achieving other objectives, the better. The limits of general legislative activity for achieving systematic law reform derive from a number of sources. In the first place, it is desirable, indeed necessary, to have a legislature with limited membership and time available. That provides a good focus for the public functions it fulfils. People know who their representatives are and can look to them for action across a range of fronts. The broad-brush or flagship nature of legislation is attuned to a busy and distracting social and political environment.1 The broad brush is often necessary so the citizenry can see what is being done in their name. The broad brush is also necessary to enable party politics to function effectively, so that people can know what a party is proposing to do and then be able to hold it to account afterwards. In a parliamentary system, Parliament’s functions are inevitably much wider than law-making, so there is bound to be pressure on parliamentary time from other important activities. As mentioned above, parliamentary time is rightly taken up with holding ministers to account for what they are doing in office. Parliament is the site for the prime minister to defend the actions of herself and her government. It is the site for playing out the high politics in the state: if a prime minister loses a vote of confidence in Parliament, the government falls. This feeds into a more profound reason why general legislative activity in Parliament is not an ideal vehicle for law reform. Politics is not just about the rational resolution of problems in society. It is also about containing and giving effect to the irrational—or more accurately, the non-rational—aspects of politics; what the political theorist John Dunn has called ‘the cunning of unreason’.2 It can be said that the mark of a healthy constitution is not that it is founded on agreement in politics; indeed, disagreement in social life is the point from which politics begins. Rather, it is its capacity to cope with disagreement, to enable people who do not agree about important things to live together peaceably.3 Parliament, as the stage of politics and the primary site for political action, has to operate in ways which enables this to happen. The main way in which it does this is by settling disputes by majority voting procedures. People do not agree and cannot be made to agree by the standards of rational thought. There is plenty about which people can rationally disagree, and when they do a vote is taken.4 Therefore, Parliament is not a place where deliberation produces a single common view of the public good and a single common view of how to legislate. Certainly, ideally, deliberation should play a part and consensus should be achieved where that is possible. But there remains wide scope for political disagreement to prevail, and then what is called for is a decision about how to proceed. That is arrived at by a majority voting procedure. Parliament has authority within our political system to take decisions and to lay down laws on the basis of that authority. At bottom, we have the age-old tension in politics and public law between reason and authority, deliberation and decision. The courts are used to looking for reason, but the legal system requires them to acknowledge the simple decision-making authority of the legislature. The decisionism in Parliament’s law-making is manifested in the way in which no authoritative statement of the rationale for a statute or its intended effect is produced on behalf of the legislature. At most, beyond the statute itself, we can have resort to certain ministerial statements in some circumstances, for example, if the statutory provision is ambiguous.5 Yet, despite this, reason does have a role to play in the law. At some level, reason supplies a part of the legitimacy of law alongside authority and pure democratic decision. A law without reason risks losing public understanding and acceptance. The courts cannot be oblivious to this danger. The possibility of an inverse interrelationship between the legitimate scope for judicial law-making and the availability of law reform through the legislature has been remarked upon many times. The famous American judge, Benjamin Cardozo, pointed out that the relationship between judges and the legislature changes over time.6 Judges had in earlier times felt more able to make law themselves, but their willingness to do so was affected in more recent times by the ready availability of the legislative process to change the law when it is perceived that change is required. He quoted another famous American judge, Oliver Wendell Holmes, who said, ‘… judges must and do legislate, but they do so only interstitially …’.7 The previous perceived freedom of judges to legislate in this way is narrowed by the ready availability of a legislature ready and able to act to make law itself, especially when it is the bearer of democratic legitimacy. Another American judge echoed Cardozo on this. In a lecture in 1942, entitled ‘The contribution of an independent judiciary to civilization’, Justice Learned Hand emphasized the importance of judicial independence to give effect to enacted law as representing the real accord reached through the political system.8 In relation to customary and common law he observed that previously judicial law-making was tolerated because the legislature was slow to act and judges represented the governing classes and their worldview; but now it is comparatively easy for legislation to be made and the judges do not have such a representative role, so they should just seek to make interstitial advances when developing the law. This interaction between the availability of legislative action and the willingness of courts to be their own legislators and law reformers has been rather obscured. The limited role of modern courts seems reasonably settled because the political environment has been reasonably settled. But one does detect it at some points. It does not take much imagination to think that the activism of the European Court of Justice in some phases of its jurisprudence has been informed by a sense that the legislative institutions of the European Union (previously the European Communities) are weak and can be slow to respond to problems, it can be difficult to enact new legislation and the institutions have comparatively low democratic legitimacy. In the UK context, it is not impossible that we may be entering a new phase with Brexit. Brexit is absorbing huge amounts of parliamentary time to try to re-legislate across the board to achieve a smooth transition, which makes Parliament less available as a legislature to deal with mundane programmes of legislative reform in the ordinary way.9 I return to the role of the courts as law reformers below. But before that, I will consider the second model: legislation following a report and recommendation of the Law Commission. 2. LEGISLATION PURSUANT TO LAW COMMISSION RECOMMENDATIONS In theory, this is the most attractive model for law reform. However, there are practical limitations which mean that its promise is only partly fulfilled. The Law Commission is an impressive body. It is independent of government. It is chaired by an eminent judge, drawn these days from the Court of Appeal.10 It is composed of commissioners who are eminent practitioners or academics in their fields. They have teams of qualified researchers of high quality who report to them and draft reports. The Commission can carry out detailed research and consult widely with all relevant actors, thereby overcoming one of the principal constraints upon legislative action by courts, which only hear from the parties to the dispute before them and may be oblivious to the wider dimensions of polycentric problems which may lie at the heart of working out what, overall, is the best general legal solution for a particular problem. Further, the Law Commission’s specific focus is law reform. It is tasked with keeping the general law under review, although it has limited resources to do so.11 Unlike Parliament under the general legislative model, the Commission is directed to examine the intricate workings of the law in detail and has the informed understanding to be able to do so. When the Law Commission reports and its recommendations are technical and uncontroversial, parliamentary procedures are truncated to allow for a speedier passage of legislation to implement the reforms which it recommends. In this, they follow the pattern of truncated parliamentary procedures used for the enactment of technical and uncontroversial consolidating legislation. Where legislation is adopted as proposed by the Law Commission in a report, the courts are provided with a detailed legislative explanation of the rationale for the provisions of the statute on which they can draw for the purposes of interpreting it. In a sense, reason and authority are then united. Why then is the Law Commission model not the simple answer to the challenge of law reform? The main reason, I think, is that it cannot escape the political limitations inherent in the general legislative model.12 Historically, the Achilles heel of the Law Commission was that the government, which exercises large control over the legislative programme in Parliament, would not make time available to implement its reports. All too often they proved to be very learned exercises in futility. Parliamentary time is a scarce resource and successive governments with pressing political priorities would not spend it on worthy but boring exercises in law reform. Still less would governments be willing to spend parliamentary time on Law Commission projects if by chance they were not boring and there was any atmosphere of controversy around them, for controversy engenders contestation in Parliament and this sucks up parliamentary time. More recently, an attempt has been made by the Law Commission to avoid the futility which had bedevilled its previous efforts. A protocol was agreed with government in 2010 whereby the government gives an indication in advance of departmental support for Law Commission projects and gives a commitment to make departmental resources and legislative time available to implement the resulting reports and recommendations. However, valuable though this is, it tends to push the boundary of political constraints further forward in the legislative process to the stage of negotiation with the government under the protocol, rather than at the stage of deciding what to do after reception of a final report. This is something of an antidote for futility, but it tends to confine the Law Commission to the bland and uncontroversial in terms of the topics which it is agreed it should handle. That is both because governments are wary of spending scarce parliamentary time too generously in advance and also because they are wary of conceding the prerogative of government in the legislative process, which is the ability to take the initiative in identifying those topics which are sufficiently currently controversial to merit consideration in Parliament and also to frame the terms in which they should be debated and addressed. Government can also withdraw its support and resources part way through a project. Added to these limitations are the limited resources of the Law Commission and the potential magnitude of the tasks given to it. The detailed research and consideration which is needed for the Commission to produce a thorough and persuasive report and set of recommendations to cover a general area of law is considerable. The Law Commission can only undertake a small number of projects at any one time as part of a defined programme specified 3 years in advance. It is not designed to react and is not capable of reacting to minor specific instances of legal problems identified in the course of litigation. In a way, the attraction of the Law Commission model for judges reflects a simple judicial desire to have their lives made easy and is no surprise. If reason and authority can be married up together by means of a detailed, technical and carefully considered report by the Law Commission and then its recommendations for legislation being enacted by Parliament, the courts’ task in interpreting legislation is made simpler. The Law Commission report becomes a very helpful aid to construction. Constructing a definitive meaning for a statutory provision which enables it to be applied to resolve a real-life dispute before the courts can be a difficult thing to achieve. In truth, it is the product of a sensitive bringing into account of a variety of factors, including its language, its place in the scheme of the legislation, the context in which it was enacted, the mischief at which it was aimed and background values which Parliament is to be taken to have intended to respect. Law Commission reports assist the courts in that task, but only up to a point. The authoritative legal instrument remains the statute, not the report which lies behind it. And the report may be as opaque as the statute on the resolution of specific disputes which come before the courts. So, for political reasons the scope for application of the Law Commission model is restricted; and for legal reasons, it may not provide the answer to every legal problem the courts encounter. This brings me to the third potential agent of law reform, the courts themselves. 3. JUDICIAL ACTION IN THE COURTS: DEVELOPMENT OF THE LAW BY THE JUDGES In the difficult cases where the legal position is unclear—that is, the kind of cases which tend to come before the courts—there is always a gap between the general statement of the relevant rule of law and its actual application to the dispute in hand. That is so whether the rule is taken from a statute or from leading cases. The courts have agency and decision-making power in that gap to push the law in a particular direction, and thereby minimize or find ways around legal problems that seem to exist. Moreover, at the apex of the court system, the Supreme Court has power to overrule previous authority and to correct legal problems identified as errors of law more directly. So how active should the courts be in the task of law reform? The crude answer, I suggest, is: ‘a little, but not a lot’. There are five principal constraints on the courts as agents of law reform. The first is their own obligation to follow precedent and maintain doctrinal coherence in the interests of ensuring reasonable standards of predictability in the law and promoting rule of law values and absence of capriciousness in the exercise of public power. The second is the limitations of the litigation process: cases are thrown up randomly and the courts may never see or have to rule upon legal issues which are in fact causing problems in society at large. Third, the courts do not have democratic legitimacy to change the law. It is Parliament that has that, and since the courts are aware that Parliament exists as a democratic institution with the very task of changing the law, they have to ensure that they do not trespass upon its functions and that they do not undermine democratic rule by acting too precipitately or too forcefully to change the law themselves. Fourth, the courts have limited resources to examine problems of law reform from every angle and to assess the possible impact of changes in wider society. Law is not just a function of what judges do in the court-room. The whole law-in-context movement is there to remind us that law is followed and applied in society at large in ways that never come before a court but which have profound effects on people. The courts are presented with only limited information about legal problems, depending on how the parties to a dispute choose to fashion their arguments. Government, on the other hand, as the principal promoter of legislation, and Parliament itself have means of making wider investigations to look in the round at the merits of changing the law. Fifthly, there is the problem of the sheer ubiquity of statute within the modern legal system as the principal form of law which regulates society. Courts do not have power to overrule or change statutes. Their powers of interpretation of statutes are heavily confined by the language of the legislation and legal principle. The result of all this is that the courts can and should alter the law only very cautiously and subject to constitutional limits on their powers. They should do so only where there is compelling reason to do so and where they can really be confident that they are improving the law while keeping it aligned with fundamental doctrinal principles. Lord Bingham stated it in this way: The courts are wary about changing the law where it is likely people have ordered their affairs on the basis of the pre-existing understanding of the law, where amendment of a rule appears to require a detailed legislative code, where the question involves an issue of current social policy on which there is no consensus within the community, where an issue is the subject of current legislative activity and where the issue arises in a field far removed from ordinary judicial experience.13 The judges are the guardians of the law and must be seen to act as such. But that role covers both the loyal application of any clearly identified positive rule of law and the coherent development of legal doctrine when addressing new cases or where the existing legal framework requires interpretation or fresh articulation of common law standards. The underlying issue is always one of what it is legitimate for the courts to do. Many factors bear on this and context is critical. Indeed, sensitivity to the different contextual factors which may be in play in a case is at the heart of what makes for a good judge. That is particularly true at an appellate level. Because context is so important, one has to speak about broad themes or tendencies rather than in absolute terms. There are important differences between public law and private law which bear upon what it is legitimate and proper for a judge to do in stating and developing the law. Also, there are significant differences between the courts’ role when applying the common law and when applying statute, although sometimes they can resemble each other closely. Constitutions in modern societies seek to balance two different traditions. The courts have to uphold that balance. Sometimes they have to do so while it feels that the ship of state is out on the open seas and the forces upon it are shifting and changing and the timbers are creaking. First, there is the democratic tradition: government by the people and for the people. Secondly, there is the liberal constitutional tradition of human rights, rule of law and preventing the tyranny of the majority.14 Often the two traditions pull in different directions. The courts—and above all the Supreme Court—have a central role in holding them in a workable and coherent balance through the articulation of legal doctrine. The balance and the legal process through which it is reached have to be perceived as legitimate and regarded as acceptable by society as a whole. The courts have to use ways of resolving disputes which will command confidence and respect. Democratic principle is the dominant side of the equation for historic and philosophical reasons. Judges have to take care to be seen to be politically impartial and to be loyal to laws laid down through the democratic process. But at the same time they are responsible for ensuring that fundamental principles of the constitutional order are respected. The law structures democratic processes in different ways across a spectrum of issues. Sometimes it provides the hard-edged grammar which is necessary for democracy to be able to work: for example, specifying who is entitled to vote and what are the criteria for something to count as legislation. Sometimes the concern will be to safeguard the background scheme of rights which make democracy itself legitimate, for example, through protection of rights of free speech and free association. But here the courts’ role overlaps with that of democratic institutions, which will set out their own views on the proper ambit of rights and individual protections. So the courts have to proceed with care if they find themselves counter-posing their views on these matters against assertions by government or through interpretation of legislation. They need to be able to explain and justify their statements of law by reference to accepted sources to demonstrate the legitimacy of what they do. In addition, sometimes it will be appropriate for the courts to articulate legal doctrine in ways which promote standards of democratic deliberation. Examples of this include the principle of legality, according to which Parliament can choose to override basic rights but only if it squarely faces up to this and makes its intention crystal clear15; and also the way in which human rights doctrine treats the margin of appreciation for government and Parliament as widened where there has been informed public and parliamentary debate about the issues.16 It may be easier for a court to demonstrate the legitimacy of developing the law in this sort of situation, because it is trying to reinforce the democratic principle. Conversely, Parliament may itself have given democratic legitimacy to the role of the courts in seeking to apply liberal rule of law values and human rights. The prime example of this in English law is the Human Rights Act 1998, and the strong obligation set out in section 3 for the courts to interpret legislation so that it is compatible with human rights. That obligation is reinforced by the further obligation imposed under section 2 to have regard to the case-law of the European Court of Human Rights. Section 3 creates a sort of statutory power to review and amend the statute book to achieve compatibility with human rights.17 On the whole, this has been a very successful enterprise. But it should be emphasized that it has been mandated by Parliament itself. Of course, however, sensitive issues remain regarding how the courts should interpret or define human rights in a democratic environment. This perspective is particularly important in public law, because there the courts are so close to the fire in the democratic and political kitchen and have to take care not to get burned. But it is also significant in private law. Parliament is the democratic institution with authority to change the law by legislation. It is able to receive evidence from multiple sources to work out what is best for society and it is able to create comprehensive and coherent legal regimes by a single act of authorship. Since Parliament is the institution with authority to change the law, one may ask: what is the authority of the courts to develop the law through interpretation and articulation of legal doctrine? Developing the law is also to change it. Again the issue is, how far is it legitimate for the courts to go in doing this themselves rather than throwing up their hands if there is a problem and leaving it to Parliament to deal with it? As Cardozo noted, there is scope for some interplay here between the extent to which there is ready access to Parliamentary time to legislate to correct problems as they emerge and, if that is difficult, perhaps an increased willingness on the part of the courts to develop the law themselves. It is also relevant that the courts have technical expertise to understand how complex legal rules work together and practical experience of seeing the law in operation. Depending on the context, this may mean that they feel well placed to make small incremental improvements as they state and develop legal rules. The other important dimension affecting the proper role of the courts in developing the law is the distinction between common law and statute. At the risk of gross simplification, the common law tends to be particularly important in the sphere of private law and statute law tends to be particularly important for public law. The courts are the custodians of the common law and are trusted by society to develop it. This is because they are subject to important constraints and disciplines in doing so. They do not act as free legislators. Instead they are to have regard to precedent. Also, since precedent is only a partial guide, it is significant that they are the interpreters of a legal tradition working within a legal culture comprising the legal professions and academic commentators.18 The need for courts to justify what they do to that technically trained legal audience as well as to society as a whole is an important discipline and ensures that rule of law values are adhered to. The legal culture generates objective standards to which the judges have regard and by reference to which they can be held to account. Also, as Cardozo put it: ‘The inscrutable force of professional opinion presses upon us like the atmosphere, though we are heedless of its weight’19 As a result of the constraints provided by rules of precedent and the effort to operate within a tradition and to satisfy standards set by the legal culture, people have reasonable notice of the likely reaction of the courts to particular cases. At the same time the courts have a reasonable degree of latitude to develop existing principles to deal with new cases and improve doctrinal coherence. Lord Mansfield described this as the law ‘working itself pure’.20 The Supreme Court has a particular responsibility here. It has to provide guidance as the apex court within the legal system and it has formal power to depart from precedents which it thinks should not be followed. It has been observed that the value of the doctrine of precedent rests in its capacity simultaneously to create constraint and allow a degree of discretion. There is a strong but rebuttable presumption that earlier decisions act as guides for present action, but not to the extent that judges must maintain outdated attitudes and a commitment to repeating their predecessors’ mistakes.21 Lord Reid said in a lecture in 1972: ‘People want two inconsistent things; that the law shall be certain, and that it shall be just and shall move with the times. It is our business to keep both objectives in view. Rigid adherence to precedent will not do. And paying lip service to precedent while admitting fine distinctions gives us the worst of both worlds. On the other hand too much flexibility leads to intolerable uncertainty.’22 Quite where one should strike the balance will be highly dependent on context. Reasonable alignment with background morality and values in society provides legitimation for common law rules.23 The common law is not legitimized by democratic choice, nor under modern conditions by simple long usage. The reflection of current social expectations and standards of fair dealing in private law is important both to ensure respect for and observance of law by the public. It also ensures that the law fulfils a practical guidance function for social interactions. People dealing with each other will not know the intricacies of the law, but they will have a broad sense of what it is fair to expect. The law should support that sense, since it enables people to plan their lives with confidence about how they will be treated if they have to turn to the law. The law should be unashamed in appealing to standards of reasonable behaviour, as it does. It should also be willing to adjust the standards applied in line with changing social expectations, both at the level of deciding what an open-textured term like reasonableness means in practice and in re-stating more hard-edged legal rules where the old rules have clearly come adrift from current social standards. Therefore, under certain conditions, there is not just a power but also a need to change the common law to keep pace with society. However, this poses its own problems, given the uncertainty and contestability of moral standards and social values. There is no simple solution to this conundrum. The common law does not license judges to impose their own personal moral or other standards, but requires them to look for standards which have general support in society. The existing common law supplies a basic stock of general moral principles, revolving around core values of the protection of property, promotion of promise-keeping and enforcement of reasonable behavioural social standards. Respect for these values is important both for doctrinal coherence and predictability and for objectivity and legitimacy in judicial decision-making. Beyond these resources, judges seek to behave as well-informed and intelligent interpreters of society, focusing so far as possible on well-recognized basic standards of interpersonal relations. They may feel more confident in orienting themselves where an overlapping consensus of different social values and moral views points to likely widespread acceptance of particular outcomes. But judges do not have special moral insight or ability to assess social need. They also have to be alert to the availability of explicit forms of law reform via legislation by Parliament, as pointed out above. Therefore, pre-existing law should be applied except when it becomes very clear that to do so would offend against prevailing conceptions of morality or social values. There is thus a threshold or tipping point where a head of pressure builds up for judicial change or adaptation of the common law to keep pace with current social values, beyond which change in the law becomes legitimate as an acceptable safety valve. Only when sufficient pressure builds up from background morality and social values can a judge properly feel confident that it is right to make an incremental adjustment in the existing law. Clearly, just as it is a matter of judgment to identify relevant general moral and social values, it is a matter of judgment as to when this tipping point has been reached. There is no formula which can take the place of the sensitive exercise of judgment by the judge him- or herself. Cardozo tried to capture the tipping point with this formulation: ‘The common will must have made itself known for so long a time as well as in so distinct a manner as to have gained stability and authority’24 This is very far from authorising the courts to act as a roving agent of law reform, changing the common law at the drop of a hat whenever individual judges conclude that the law is not in an optimal state. In relation to statutes, the courts are interpreters of legislation created by Parliament. They act as the agents of Parliament, seeking to understand and then carry out Parliament’s will and intention. This narrows down the legitimate scope for the courts to develop the law themselves. However, particularly in the field of public law, there is in fact considerable scope for the courts to read legislation as subject to fundamental constitutional values which are identified and elaborated by the courts. The courts can find legitimacy in doing this by postulating that Parliament—which is a fictional person—is presumed to be a body which intends to legislate in a way which is respectful of important constitutional values.25 One example is the way in which the courts read legislative powers which affect individuals in detrimental ways as subject to a duty on the executive to act fairly, as in the famous case of Ridge v Baldwin.26 The fact of implication of such a duty in the first place is significant. But so is the open-textured nature of the duty. The courts have legitimacy in stating what is fair in any particular situation, and they develop fairness standards over time to reflect changing social expectations in the same way as they develop the common law. Another example is the principle of legality which I have already mentioned. Here the courts identify important constitutional rights or values by reference to certain evidence and arguments and postulate a strong presumption that Parliament intended its legislation to be read subject to those values. This is a very powerful legal step by the courts, equivalent to the impact of section 3 of the Human Rights Act but without express statement by Parliament of the interpretative principle and without express identification by Parliament of the rights in question. So the courts need to take care when using the principle of legality to explain clearly how they identify the fundamental right in question and to justify its effect by explaining that it is plausible that Parliament, in legislating for a liberal democratic state, intended to take it into account.27 By these conceptual means and others, the English courts have in a general sense reformed the public law which governs the activities of the administrative state. They have been active in laying down the values and standards to which the executive must adhere when exercising statutory powers. English public law looks very different indeed now from how it looked 50 years or even 20 years ago. Public authorities must act fairly, and the courts have specified the standards of fairness which apply. They must also respect constitutional and human rights when they act, and the courts have become active in specifying those rights and giving them concrete force in the process of statutory interpretation. However, I do not think that this general movement of reform—important though it undoubtedly is—qualifies as law reform in the more narrow sense on which I have been focussing in this article. There has been no process of the courts coming across specific legal rules which do not work well and then making a conscious decision to reform those rules. Nor is it easy to see how the courts could do this. Most of the time the specific legal rules are contained in statute, and the courts have no authority to change or override statute. Instead, the process has been of a very different kind. It has been a process of the gradual recognition—some might say, the gradual injection—of background substantive standards of administrative behaviour which are taken to be incorporated by implication into statutory regimes in public law. So the overall assessment of the model of law reform by the courts is that it occurs only very patchily and is subject to the major limitations referred to above. There can in reality be no question of the courts taking on a general role as an agency of law reform, whatever the practical difficulties of ensuring that the legislature fulfils that role itself. 4. ACADEMIC COMMENTARY The fourth possible means of law reform under review here is by academic commentary, and in particular sustained academic restatements of areas of the law to try to give it coherence and a sustainable underlying rationale. Conceptual coherence in public and private law is an important consideration. This is because it serves rule of law values, in that legal advice in relation to some new situation can be given with greater confidence if the law has a coherent shape and scheme, so people can plan their lives. Conceptual coherence is also important to avoid capricious and unjust distinctions arising in the law, which would undermine its legitimacy in society and its value as a guide to conduct. Judges working day to day under pressure to get out their judgments know this. But they do not always have the luxury of time to conduct complete reviews of the general terrain of the law when reaching their decision on a small part of it. They are therefore conscious of the important contribution which the legal academic community makes in providing sustained general over-views of whole fields of the law. These can be invaluable in helping judges to orientate themselves and to identify the underlying principles to apply and develop. Thus, for example, the importance of the US Restatements of the law cannot be over-emphasized as a spur to legal development in the United States and elsewhere too. Benjamin Cardozo was at the forefront in calling for this kind of contribution when he wrote in 192428 that there was a need for a scientific restatement of the law to bring order out of ‘the wilderness of precedent’. With the volume of cases coming through, the result was that ‘the citation of precedent is tending to count for less, and appeal to an informing principle is tending to count for more’. Modern conditions make that observation even more true today. Therefore, he wrote, ‘More and more we are looking to the scholar in his study, to the jurist rather than to the judge or lawyer, for inspiration and for guidance’. Again, this comment remains apt today. In the United Kingdom, Professor Andrew Burrows has taken up and adapted the restatement model, with succinct, accurate and easy to use statements of the law of unjust enrichment and contract.29 Interestingly—and effectively—he has used a model of writing the text himself, to maintain the greatest coherence, but with the benefit of advice from an advisory panel which includes some judges. All this is of great value. However, enough has been said above to indicate that this form of academic contribution is remote from specific and focused law reform in the narrow sense. It is best understood as a form of advice to judges to guide them in their decision-making and their formulation of legal principles. It may well make a contribution to making a judge feel confident in identifying that the tipping point has been reached at which a change in the common law is justified. But it does not enable or empower the judge to step outside the limits of his or her role in developing the common law. 5. CONCLUSION From a judicial perspective, there is no simple solution to the problem of law reform. The theory is clear: the legislature ought to be the prime agent of law reform because it has the constitutional mandate to change the law. But there are practical political reasons why it cannot spend all its time on law reform. Nor are those reasons necessarily to be seen as bad. The Law Commission has proved to be a less than fully satisfactory solution, essentially because it can only operate through the legislature and therefore cannot escape the political factors which impede the legislature in acting. The resources available to it, both in terms of staff and parliamentary time, are limited. It would require a political decision to increase them and make the work of the Commission, valuable as it is, more effective. But that would involve weighing the claims of general law reform against other governmental and parliamentary priorities. The courts have no general mandate to change the law at will or to act as agents of law reform. They can only develop the law cautiously by carefully identifying and clarifying underlying principles. This may feel frustrating, but there are important constitutional reasons why it should be so. Footnotes * Lord Justice of Appeal, England and Wales. This article is based on a lecture given at the Chinese University of Hong Kong on 21 September 2017. 1 For discussion of the inherent tension between the different disciplines of the law and politics in relation to legislation, see S Laws ‘Legislation and Politics’, ch. 5 in D Feldman (ed) Law in Politics, Politics in Law (Oxford: Hart Publishing, 2013); and see D Runciman Politics (London: Profile Books Ltd, 2014), 90–91 (‘In politics, once you’ve made what you think is the right decision, you still have to convince other people of your right to make that decision … To succeed in politics requires a tolerance for uncertainty and an understanding of confusion’). 2 J. Dunn The Cunning of Unreason: Making Sense of Politics (London: HarperCollins, 2000). 3 As David Feldman writes, ‘… democracy and constitutions are not about securing agreement. They are concerned with managing disagreement’, in Feldman, n 1 above, p. 261; cf B Williams In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton: Princeton University Press, 2005); W Rasch Sovereignty and its Discontents: On the Primacy of Conflict and the Structure of the Political (London: Birkbeck Law Press, 2004). 4 See e.g. R Tuck Free Riding (Cambridge Mass: Harvard University Press, 2008) and The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge: Cambridge University Press, 2016), 260 (‘… if we continue to think in terms of agency then majoritarianism remains an obvious way of structuring politics’); Williams, n 2 above, p. 13 [‘A very important reason for thinking in terms of the political is that a political decision—the conclusion of a political deliberation which brings all sorts of considerations, considerations of principle along with others, to one focus of decision—is that such a decision does not in itself announce that the other party was morally wrong or, indeed, wrong at all. What it immediately announces is that they have lost’ (emphasis in original)]. 5 Pepper v Hart [1993] AC 593. 6 B Cardozo The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 28 and 60–61; this is also a theme in L Jaffe English and American Judges as Lawmakers (Oxford: Clarendon Press, 1969). 7 Ibid at 69, quoting Southern Pacific Co. v Jensen, 244 U.S. 205, 221. 8 L Hand The Spirit of Liberty: Papers and Addresses of Learned Hand (ed. Irving Dilliard. New York: Knopf, 1954), ch. 20. 9 Cf Jaffe, n 6 above, 84 (‘… even in a parliamentary democracy a vigorous, independent judiciary can make important contributions to the solution of problems demanding lawmaking … Our legislatures are grossly over-burdened. Courts can assist them and can provide the stimulus for law reform’). 10 The current chair is Lord Justice Bean. 11 See the website of the Law Commission for England and Wales at www.lawcom.gov.uk. 12 For discussion, see E Cooke and H Macqueen ‘Law Reform in a Political Environment: The Work of the Law Commissions’, ch. 9 in Feldman, n 1 above; also the Rt Hon. Lord Justice Lloyd Jones, ‘The Law Commission and the Implementation of Law Reform’, Sir William Dale Annual Lecture 2012, on the Law Commission website, n 11 above (4 October 2017). 13 Lord Bingham ‘The Judge as Lawmaker: an English Perspective’, in P Rishworth (ed) The Struggle for Simplicity in the Law: Essays for Lord Cooke of Thoroton (Wellington: Butterworths, 1997); also see L Dyson ‘Where the Common Law Fears to Tread’ (2013) 34 Stat LR 1. 14 J Tully ‘The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy’ (2002) 65 MLR 204; G Webber The Negotiable Constitution: On the Limitation of Rights (Cambridge: Cambridge University Press, 2009); P Sales ‘Law and Democracy in a Human Rights Framework’, ch. 15 in Feldman, n 1 above. 15 R v Secretary of State for the Home Department, ex p. Pierson [1998] AC 539; R v Secretary of State for the Home Department, ex p. Simms [2000] 2 AC 115. 16 E.g. Animal Defenders International v United Kingdom (2013) 57 EHRR 21, GC; cf Hirst v United Kingdom (No. 2) (2006) 42 EHRR 41, GC. For discussion, see Sales, n 14 above. 17 P Sales and R Ekins ‘Rights-consistent Interpretation and the Human Rights Act 1998’ (2011) 127 LQR 217. 18 See e.g. K Llewellyn The Common Law Tradition: Deciding Appeals (Boston: Little, Brown and Company, 1960), 185–186. 19 B Cardozo The Growth of the Law (New Haven: Yale University Press, 1924), 61. 20 As counsel in Omychund v Barker (1744) 1 Atk 21, 33; 26 ER 15, 24. 21 N Duxbury The Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008), 183. Justice Cardozo said a judge must constantly keep an eye on ‘the equilibrium between precedent and justice’: The Paradoxes of Legal Science (New York: Columbia University Press, 1928), 30. 22 Lord Reid ‘The Judge as Law Maker’ (1972) JSPTL 22, 26. 23 The text of the next four paragraphs is drawn from a lecture on the common law delivered at Renmin University in Beijing in September 2016, to be published. 24 Cardozo, n 21 above, 51. 25 P Sales ‘A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998’ (2009) 125 LQR 598. 26 [1964] AC 40. 27 P Sales ‘Rights and Fundamental Rights in English Law’ (2016) CLJ 86. 28 Cardozo, n 19 above, 5 and 11. 29 A Burrows A Restatement of the English Law of Unjust Enrichment (Oxford: Oxford University Press, 2012) and A Restatement of the English Law of Contract (Oxford: Oxford University Press, 2016). © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

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Statute Law ReviewOxford University Press

Published: Nov 20, 2017

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