1 - Introduction

Summary

The functions of the law seem to have developed dramatically since the days of Miss Emma Hamlyn.

What I seek to show in this book is that many fundamental choices for society are now made, and probably have to be made, not by the legislature, not by the executive, but by the courts. This requires the courts not merely to apply existing legal rules, but to develop the law. In doing so, the courts will necessarily be making value choices, and often balancing competing values, especially where they are confronted with conflicts between them.

For example, in the moral sphere, acute problems arise on the ostensibly sacrosanct right to life: what is its scope? The duty to protect and respect human life may conflict with our conceptions of human dignity. What then should be the response of the courts to the issue of euthanasia?

Many examples of competing values have their origin in the idea of fundamental rights. Especially over the past fifty years, it has become widely accepted in Europe that the protection of fundamental human rights is a principal function of the courts. But often fundamental rights are not, despite the language sometimes used, absolute and unqualified. Freedom of speech may conflict with the right to privacy; currently, there is vital debate about the limits on the fundamental right to practise a religion. So the courts, necessarily, have to strike the balance.