Date: Fri, 11 August 2006 08:19:13

From: Steve Hedley

Subject: Law's (Il)logic

I doubt that Halsbury in Quinn had any very complicated proposition in mind. (His opinion is less than 3 pages.) The "logic" he is dodging is the argument from Allen v Flood; his escape from the "logic" is to distinguish it (because Allen didn't involve a conspiracy - [1901] AC 507). (His way of speaking is bound to confuse people who always use "logic" to mean "deductive logic" - they are divided from Halsbury by a common language, we might say - but it all seems quite orthodox jurisprudentially.) The less sympathetic sort of commentator would say that Halsbury was the author of his own misfortune here, as he was the leading spirit behind London Tramways [1898] AC 375, which held that the Lords could not depart from their own precedents. (But one modern writer plausibly blames London Tramways on Fred Pollock - so maybe it was the academics' fault all along. Damn!)

As to the €64 question whether "it's all policy" really: Halsbury got the result he wanted in Quinn not through his (simplistic and unpersuasive) opinion, but through his (practised and masterly) selection of the judicial panel, ensuring that the Conservative lords would be in a majority, and so guaranteeing a defeat for the union defendant. (For more detail see Paterson (1974) 1 Br JL&S 118, 120-123 and Stevens, Law and Politics (1978) 92-94 - or indeed any book asking why unions and judges never saw eye to eye, of which there are, surprise surprise, quite a few.) Whether this represents a triumph for policy, for justice, for logic, for experience, for whim, for whimsy, or merely for reactionary Toryism, may depend on definitions - the framing of which is left as an exercise to the reader.

Steve Hedley
Faculty of Law, University College Cork

----------------------------------------------------------
From: David Cheifetz
Sent: 10 August 2006 15:52
To: 'Jason Neyers'
Subject: RE: ODG: Law's (Il)logic

The problem with taking that statement from Quinn too literally is that it guts any justification for stare decisis other than one based on consistency unless there's a good reason not to be consistent. And, good reason becomes almost anything that the judge or jury might think is good reason that isn't proscribed. Taken literally, the result is a system based as much on whimsy as whim. Or, as Lord Denning said in Lamb, it's all policy.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>