The purpose of the present study is to consider the constitutional significance of four House of Lords decisions which raise fundamental questions about the legal status of the Executive branch of government in the United Kingdom and its relationship to the courts. The decisions are those in: Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C. 75; [1964] 2 All E.R. 348; Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853; [1966] 2 All E.R. 536; Conway v. Rimmer [1968] A.C. 910; [1968] 1 All E.R. 874; Nissan v. Attorney-General [1970] A.C. 179; [1969] 1 All E.R. 629.

The English lawyer has been notoriously unwilling to admit the relevance of social sciences to his discipline. In part, this may be attributed to his lack of formal training in economics or sociology. As regards the latter, there are some signs of the handicap being overcome: much current research effort is now being directed to the interpretation of law and the legal system as social phenomena. But the application of economic reasoning to legal instruments and institutions has been limited and tentative. Although it has long been recognised that a marriage of the two disciplines is necessary for the procreation of effective norms in areas where the law clearly governs economic activities, for example, the regulation of trade and income redistribution, so far, in this country at least, creative thinking about central legal institutions such as tort, contract, property and crime has remained relatively untouched by such a mode of analysis. Yet, as Americans have demonstrated, there is nothing inappropriate in such an exercise. At first sight the subject areas of economics and law will appear to diverge significantly: the former is “concerned with the manner in which a society produces, distributes and consumes wealth when it is constrained by scarcity, either of tangible resources or of intangible resources,” while the latter is often viewed as a system of norms governing the conduct of individuals and institutions. Yet such conduct will generally involve the transfer and acquisition of resources. With this congruence of interest, therefore, the opportunity exists to compare economic analysis with prevailing legal rules on particular issues to see whether the “right” solution is reached.

In his Analysis of the Laws of England, Blackstone briefly assesses the work of those of his predecessors “who have laboured in reducing our laws to a system.” Glanville and Bracton were overburdened with ancient learning; the abridgements of Fitzherbert and Brooke “merely alphabetical in character”; Francis Bacon's Elements “purposely avoided any regular order”; Coke's Institutes “are unfortunately as deficient in method as they are rich in matter.” However, “Sir Henry Finch's discourse of law is a treatise of a very different character; his method is greatly superior to all that were before extant; his text is weighty, concise and nervous; his illustrations are apposite, clear and authentic.” Indeed by Blackstone's own account it would seem that but for the abolition of military tenures and the disuse of real actions, which had rendered “near half of the book obsolete,” Finch's “happy progress in reducing the elements of the law from their former chaos to a regular methodical science” might have provided the scheme for that “proposed course of academical lectures” which was the immediate source of the Commentaries on the Laws of England.

The concept of authority is one which may be explicated in many ways—normatively, psychologically, sociologically, politically. That is to say, one may seek to show how it is used in the contexts of normative justifications or of assertions about psychological, sociological or political phenomena. As a normative concept, “authority” relates to situations in which there is given as a reason warranting that something should, must not, or may be done the fact that a particular individual or individuals has so laid it down.

J. M. Steiner has argued, in a fashion to be gone into in a moment, that inevitably “the judge retains a field of choice” in legal decision. This choice is substantive and not merely discretionary in some soft sense which would find discretion, like judgment, necessary to the application of any and all rules. The thesis is not the weak one that an official, say a sports referee, must judge—and be allowed the discretion to judge—whether an infraction has been committed before he can apply the relevant rule. It is the strong one that, sometimes at least, an official must himself supply additional premises, which are from “outside” the law, for his decision. These external premises are of the same level of substance and import as any statute or precedent might be.

His argument for this position is negative in form. He holds that since no ordered set of “principles” or goals can give guidance on cases “outside” their range, and since many such cases will systematically exist, the law in order to be decisive—a virtue of high worth—must allow the judge the power to complete the legal argument for such excluded cases. He will do so presumably by supplying the missing premise from his “field of choice” and ex hypothesi not from precedents or statutes. Let us suppose, along with Steiner, that the set of premises whose adequacy is in question is a set which contains the goals of the law. Steiner's position then is that any such set which exists within the law and is “closed” to addition by the judge will be systematically inadequate for some or many cases which can come before him for decision.