Date: 12Sep 2016
Des Voeux Chambers Oxford-HKU Visiting Fellowship Lecture
For the most part, judges are called upon to interpret and apply the law, whether it be past decisions or legislative instruments. This naturally entails considerable skill in legal analysis, but this of course is their very area of expertise. It is also exactly the task at which the legal training he or she has received was directed. But in some cases, particularly those involving medical issues, there may either be no clear legal answer, or the law leads to answer that appears morally untenable. Dworkin would argue that at this point, the judge’s role is to divine the answer from the ‘seamless web’ of legal principle, and certainly this approach may yield some results. However, it is evident that either by choice or by need, sometimes judges resort to reasoning ethically to find what they consider the right decision.
In this talk, I explore when and how such situations arise, focusing on medical law cases in the main. I analyse a series of cases in which judges have, in my view, founded their decisions at least in part on ethical, rather than solely legal, considerations. I then critically appraise this approach, and in particular, examine whether judges should employ ethical reasoning. I discuss this from both a jurisprudential perspective, but also from the more practical perspective of whether, actually, judges have the right skills to play moral philosopher. I conclude by posing the question of what should be done if, as I suspect is sometimes true, they do not.