Introduction
The role of a judge within the English legal system is often portrayed as one of impartial application of the law. The statement that judges decide matters based on their perception of what is fair suggests a more subjective and discretionary role, where personal morality and a sense of justice are the primary drivers of judicial decisions. This essay will discuss this assertion by exploring the tension between two competing views of the judicial function: legal formalism, which posits that judges are mere appliers of established legal rules, and legal realism, which acknowledges a significant role for judicial discretion and, consequently, perceptions of fairness. It will be argued that while the statement is an oversimplification, judges are not entirely detached from considerations of fairness. However, their discretion is heavily constrained by legal principles such as the doctrine of precedent, the supremacy of Parliament, and the formal requirements of the law. Therefore, fairness operates as a factor within a structured legal framework, rather than as the sole basis for judicial decision-making.
The Formalist Conception of the Judicial Role
The traditional or formalist view of the judiciary holds that judges do not make law, but merely declare it. This 'declaratory theory' suggests that the law is a complete and autonomous system of rules, and the judge's task is simply to find the relevant rule and apply it to the facts of the case before them. From this perspective, a judge’s personal perception of fairness is irrelevant. The focus is on legal certainty, predictability, and the uniform application of the law. Lord Esher MR articulated this view in Willis & Co v Baddeley [1892] 2 QB 324, stating, "There is, in fact, no such thing as a judge’s discretion in the sense of a power to do what he likes".
The primary mechanism for constraining judicial choice and ensuring consistency is the doctrine of precedent, or stare decisis (to stand by things decided). This principle requires judges to follow the decisions of higher courts, and usually courts of the same level, in cases with similar material facts. This creates a rigid hierarchy of authority that binds judges and limits their ability to deviate from established legal principles, even if they believe that applying the precedent would lead to an unfair outcome in a particular case. For example, the Supreme Court is the only court that can depart from its own previous decisions, a power established in the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. This system is designed to promote legal certainty over individualised, fairness-based justice. Similarly, in interpreting statutes, judges are bound by the will of Parliament. While different rules of interpretation exist (literal, golden, mischief), the overarching principle is that the judge’s role is to give effect to parliamentary intent, not to substitute their own view of what would be a fairer law (Slapper and Kelly, 2017).
Fairness, Discretion and the Realist Challenge
In contrast, the legal realist school of thought challenges the formalist idea that law is a self-contained system of rules. Realists argue that in practice, the law is often indeterminate, with gaps, ambiguities, and conflicting precedents. In these ‘hard cases’, judges must inevitably exercise a degree of choice, and it is here that their personal backgrounds, values, and perceptions of fairness can influence the outcome. As the American jurist Oliver Wendell Holmes Jr. suggested, the law is ultimately what judges say it is, based on "what will be the decision of the courts" (Holmes, 1897, p. 461).
The development of equity in English law is perhaps the clearest historical example of judicial decision-making being driven by fairness. Equity emerged as a response to the perceived rigidity and harshness of the common law, providing remedies where the common law provided none, based on principles of conscience and justice. Doctrines such as proprietary estoppel and the constructive trust are tools that allow judges to achieve a fair result in circumstances where a strict application of legal property rights would be unconscionable.
A landmark example of judicial creativity, arguably guided by a sense of fairness and public policy, is the case of Donoghue v Stevenson [1932] AC 562. In the absence of a clear pre-existing rule covering the facts, Lord Atkin formulated the ‘neighbour principle’ to establish a general duty of care in negligence. He asked, "Who, in law, is my neighbour?", and answered that it was persons "so closely and directly affected by my act that I ought reasonably to have them in contemplation". This was not an application of a clear, existing rule, but the creation of a new principle to provide a just remedy for a wronged individual, reflecting a judicial perception of what was fair in a modern industrial society. Similarly, H.L.A. Hart, while not a realist, acknowledged that in the ‘penumbra of uncertainty’ surrounding legal rules, judges have a law-making role and must exercise discretion, weighing competing interests and policies (Hart, 2012).
The Institutional Constraints on Judicial Notions of Fairness
While it is clear that judges do exercise discretion and are influenced by ideas of fairness, it is incorrect to suggest this is the sole basis of their decisions. The judicial role is performed within a system of significant institutional and constitutional constraints that channel and limit the influence of personal perceptions. As noted earlier, the doctrine of precedent remains a powerful constraint. While judges in higher courts can develop the common law, they do so incrementally, building upon existing principles rather than making radical changes based on whim. Lord Dyson, a former Master of the Rolls, stated that while judges do make law, they are "not free to legislate as they please" and must develop the law "in a coherent and principled way" (Dyson, 2014).
Furthermore, the principle of parliamentary sovereignty means that Parliament is the ultimate source of law in the UK. Where a statute is clear and applicable, a judge must apply it, regardless of their view on its fairness. The Human Rights Act 1998 (HRA) provides a modern example of this balanced constitutional position. Section 3 of the HRA requires judges to read and give effect to primary and subordinate legislation in a way which is compatible with the European Convention on Human Rights rights "so far as it is possible to do so". This directs judges towards interpretations that promote fairness and fundamental rights. However, if a compatible interpretation is not possible, the judge cannot strike down the Act of Parliament. They can only issue a ‘declaration of incompatibility’ under section 4, leaving the final decision to amend the law with Parliament. This demonstrates that while judges are empowered to promote fairness, their power is subordinate to the democratic legislature. This constitutional arrangement prevents a "government by judges" and ensures that personal judicial views on fairness do not override the expressed will of Parliament.
Conclusion
In conclusion, the assertion that "judges decide matters based on their perception of what is fair" is a significant overstatement of the judicial function in England and Wales. The formalist ideal of the judge as a neutral law-applier, though too rigid to reflect reality, correctly identifies the powerful constraints of precedent and statute that limit judicial choice. Conversely, the realist insight that law is not always determinate and that judges possess discretion is also valid, particularly in hard cases and in the development of the common law, where notions of justice and fairness undoubtedly play a role. However, this discretion is not an unfettered power to do whatever a judge deems fair. It is exercised within a robust legal and constitutional framework that prioritises certainty, consistency, and the supremacy of Parliament. Judges are therefore guided and constrained by law, and while their perception of fairness can influence decisions at the margins where the law is unclear, it is not the primary or sole determinant of legal outcomes.
References
Donoghue v Stevenson [1932] AC 562.
Dyson, J. (2014) The Judiciary in the 21st Century: More Power to the Judges? The Bar Council Law Reform Lecture.
Hart, H.L.A. (2012) The Concept of Law. 3rd edn. Oxford: Oxford University Press.
Holmes, O.W. (1897) 'The Path of the Law', Harvard Law Review, 10(8), pp. 457-478.
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Abingdon: Routledge.
Willis & Co v Baddeley [1892] 2 QB 324.
