Why judges need the moral manoeuvre of common law

Someone from a foreign legal system visits a common law courthouse. In one court, a hostile judge asks a lawyer: "Is there any legal precedent that I CAN do this?" In the court next door, a hostile judge asks another lawyer: "Is there any legal precedent that I CANNOT do this?"

The poor visitor is left to wonder: What is it about the common law? Do judges require case authority to tell them what they can do? Or do they require case authority to tell them what they cannot do? The key to understanding this query is to realise that legal problems present themselves in different forms.

There are cases in which the facts are clear and the wording of the law is unambiguous, where the judge may have little alternative but to apply the law irrespective of his personal perception of "moral merits". But in many cases the matter is less clear cut.

The application of the law to the facts may involve something subjective, such as whether someone has acted "reasonably".

Or the language of the law or of a written contract may be ambiguous. Or there may be no legal precedent on the point. In these cases, the judge's perception of fairness and justice is potentially engaged.

In one of my favourite articles Law as Taught and Law as Practised by the eminent British judge and jurist Sir Robert Megarry, the writer observed: "In the practice of the law there is a tendency to look at what is the fair and just and proper result, and then see whether that conclusion can be reached in accordance with the law. Of course, if there is something in your path that stops you doing this, then it stops you."

The different scenes outlined at the beginning of this article are situations where the judge is trying to ascertain if there is anything which stops him doing what he wishes to achieve, as a matter of justice and fairness.