Judges as applied political theorists – interpreting human rights through case law
Written by Sashka Bakalova
The term ‘legal reasoning’ refers to the process judges go through in reaching a decision in the case that is before them, and the arguments that they give in support of this decision. Legal reasoning looks at the relationship between the arguments of the judges and the reasoning for those arguments, while also determining the appropriateness of those reasons. There are two parts that comprise a legal decision: the judge’s ruling which determines the outcome of the case, and the justifications and arguments in support of the ruling, which make light of the general considerations taken into account in the process. This legal reasoning process shows in detail how the general considerations, during the course of the judge’s deliberations, lead to the ruling .
The facts of the case represent the premises of the general legal considerations. Depending on the nature of the premises, a logical legal argument would follow. Analysists of legal reasoning have presented this concept along the lines of the statement ‘a sentence A follows logically from the set of premises B if and only if in every case in which the premises of B are true, A is also true’. The role of logic is to designate certain forms of argument as valid. There are, however, various logical paths, forming different arguments, which can be just as valid. This leads to issues with determining which is of these arguments is the most complete and relevant for the situation. For example, from the premises (1) all lawyers wear suits, and (2) A is a lawyer, the conclusion would be that A wears a suit. This type of deductive reasoning is called a syllogism. In a valid syllogism, the truth of the conclusion depends on the truth of the premises. However, in contrast with the example above, the syllogisms used in legal reasoning rely on normative statements. For example, the premises (1) anyone who falsifies legal documents commits forgery and (2) B falsified a legal document, logically entail the conclusion that B committed forgery. In other words, the premises represent the conditions, which if met, lead to the consequences in the conclusion.
During the course of determining the premises of a syllogism, judges often concurrently employ a balancing exercise. The balancing exercise is particularly useful when it is used to decide hard cases. Hard cases include instances where the relevant rule to be applied is deemed to be inconsistent with the case at hand, or when there seems to be no relevant rule to be applied at all. Moreover, balancing is “part of the structure of constitutional rights in which the political institutions have a limited override power”. The separation of powers in the UK ensures that the judicial branch and the legislative branch work independently so that one is not in conflict with the other. This means that there are instances where the intent that the legislators had in enacting the specific law is not always clear.
David Robertson’s Position
In his book, Robertson discusses modern constitutional review and the practices of constitutional courts. He discusses cases from courts such as the US Supreme Court, the German Federal Constitutional Court, and the French Conseil Constitutionnel. As Robertson explains, most of what these types of courts do is “transforming societies” by “spreading the values set out in the constitution throughout their state and society”. Judges have the power to interpret the constitution in order to ascertain its scope and limits. There have been case examples of why this is so important – with time morals and ethics in societies change, and the law needs to adapt to those changes. Robertson gives an example with the case of Lawrence v Texas. This was a case which sought to challenge a state law which criminalised homosexual practices. Here, the US Supreme Court overturned the earlier ruling precedent from Bowers v Howick, ruling that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent”. What this case shows is that, generally, judges are free not to follow an established precedent despite the doctrine of stare decisis. Moreover, constitutional courts tend to keep track of foreign judgements. In this way, there is a wider source of decisions on constitutional issues. As Robertson makes clear, “foreign decisions are not only a source of ideas for constitutional review bodies, they also act as a further discipline, making the arguments used on one issue sharply constraining on others, and furthering the way in which constitutional review has become a highly intellectual act of drawing out what may or may not be done in a modern society”.
This idea has been recognised in the UK as well. In a well-known judgement in R (Ullah) v Special Adjudicator , Lord Bingham held that “it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court … The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”. This has become known as ‘the Ullah principle’. This principle essentially shows that in deciding cases concerning the UK constitution and the rights set out in the European Convention of Human Rights (ECHR), judges should balance rules stemming from UK legislation and ECtHR jurisprudence. Moreover, section 3 of the Human Rights Act 1998 explicitly states that ““[s]o far as it is possible to do so, … legislation must be read and given effect in a way which is compatible with the Convention rights”. Accordingly, section 2(1)(a) of the Act states that “[a] court or tribunal determining a question which has arisen in connection with a Convention right must take into account any … judgement, decision, declaration or advisory opinion of the European Court of Human Rights”. Section 6 makes it unlawful for public authorities to act incompatibly with the Convention except for instances where statute prevents them from doing so.
In the case of R (on the application of Nicklinson and another) v Ministry of Justice it had to be decided whether the current law on assisted suicide was incompatible with the appellant’s rights under Article 8 of the ECHR. An issue presented before the court was whether there were any justifications for the interference of section 2 of the 1998 Act with Article 8 of the ECHR. It was held at  that it can only be a valid interference if it is “necessary in a democratic society”, according to the requirements in Article 8.2. In the form of a syllogism this would be the question to be answered. Lord Wilson explained in R (Aguilar Quila) v The Secretary of State for the Home Department that four questions arise when determining whether the legislative measures in place satisfy the Article 8.2 requirements. These questions could be presented as premises in the syllogism: “(a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?”. The answers to those premises could form the conclusion.
In answering those questions judges engage in a balancing exercise. The legislative measures contained in UK legislation need to be balanced with the rights in the Convention and their limits. As the Strasbourg court explained in Pretty v UK and Haas, when considering legislation on assisted suicide, the article 8.1 rights need to be balanced against the need to protect the weak and vulnerable in relation to their Article 2 and Article 8.1 rights. The Nicklinson case is also an example of the power and competence of the courts to interpret legislation and apply the relevant rules to the facts of the particular case.
As Robertson argues, judges outline those rules in the form of bullet points, much like premises in a syllogism, and use their intellectual creativity to interpret them and develop a conclusion. Furthermore, since the UK constitution is uncodified and flexible, and as a result of the doctrine of separation of powers, more weight is put on judges to justly and appropriately interpret it. The fact that legal rules can, in some situations, such as assisted suicide, be unclear, requires judges to be resourceful and take part in fundamentally creative activities. Robertson further explains that “[c]onstitutions that recognise that rights need to be flexible and only rigorously imposed when necessary, present a further complexity—they actively require the courts to be policy analysts and to work out for themselves whether a government goal is sufficiently important to allow a proposed limitation on a right. So it is an applied political theory that judicial review bodies are required to construct”
 Martin P. Golding, Legal Reasoning (1st edn, Broadview Press c2001) 1  A. Tarski, “O poje˛ciu wynikania logicznego” [On the Concept of Logical Consequence], Przegla˛d Filozoficzny (vol. 39, 1936) pp. 58–68.  Jerzy Stelmach, Methods of Legal Reasoning (1st edn, Dordrecht : Springer 2006) 2-3  Neil Maccormick, Rhetoric and The Rule of Law: A Theory of Legal Reasoning (1st edn, Oxford: Oxford University Press 2005) 35  Stephen Gardbaum, Limiting Constitutional Rights’ (2007) 54 UCLA Law Review 810  David Robertson, The Judge As Political Theorist Contemporary Constitutional Review (1st edn, Princeton, NJ : Princeton University Press 2010) 1  Lawrence v Texas, 539 US 558 (2003) (US Supreme Court)  Bowers v Hardwick, 478 US 186 (1986) (US Supreme Court)  Supra note Lawrence v Texas  Supra note n6, 35  R. (on the application of Ullah) v Special Adjudicator, 2004 WL 1174214, 20   UKSC 38   1 AC 621, para 45  Pretty v United Kingdom (2002) 35 EHRR 1, para 74  Haas v Switzerland (2011) 53 EHRR 33, para 57