There was a time, now fading from memory, when laws were made by legislatures. Today, look not to elected representatives for the setting of laws, but to the judges whose keen eye for identifying formerly unrecognised “rights” would appear to be boundless
For a considerable time, judicial power in Britain has been expanding at the expense of legislative and executive powers, and promises to continue to do so. But if this is to continue – and there are powerful reasons why it should not – it should be brought about not just by changes in the thinking of legal elites such as academics and judges, but with the understanding and assent of the public, or at least of those elected to represent the public. Furthermore, they must possess the knowledge needed to decide whether to assent or to oppose the change. This lecture is intended to provide some of that knowledge by describing recent developments and setting them within a broader philosophical and comparative context. This should be of interest elsewhere in the Anglosphere, wherever parliamentary government and the common law have grown from the same British stock.
While I will sometimes speak critically of judges expanding their own powers, I do not intend to impugn their motives. Decisions that have expanded judicial power have always been motivated by the laudable goal of promoting justice or the rule of law, and often with success. It should be acknowledged that the philosophical and political issues I will discuss are difficult ones, about which well informed and reasonable minds can and do disagree. On the other hand, it is this very fact – the existence of reasonable disagreement – that underpins the case for substantial constitutional change being brought about only through democratic reforms, and not by unilateral judicial innovation.