The Indirect Influence of Politics on Tort Liability of Public Authorities in English Law
Priel, Dan, Law & Society Review
The scope of negligence liability of public authorities in English law has undergone significant changes in the Post-World War II period, first expanding and then, from the mid-1980s, retracting. This article tries to explain why this happened not by focusing, as is common in most commentary on this area of law, on changing doctrinal "tests," but rather by tying it to changes in the background political ideology. My main contention is that political change has brought about a change in the law, but that it did so by affecting the scope of the political domain, and by implication, also the scope of the legal one. More specifically, I argue that Britain's Post-War consensus on the welfare state has enabled the courts to expand state liability in accordance with emerging notions of the welfare state without seeming to take the law into controversial territory. When Thatcher came to power, the welfare state was no longer in consensus, thus making further development of legal doctrines on welfarist lines appear politically contentious. The courts therefore reverted back to older doctrines that seemed less politically charged in the new political atmosphere of the 1980s.
In debates on the relationship between politics and law, two extreme views tend to occupy much of the discussion. At one end of the spectrum we see the view that law is simply a masquerade for politics. On this view, doctrinal analyses we find in judicial opinions are mere cover for what is really going on, namely politics. At the other extreme are those who think of law in political terms is to misunderstand what this law is all about (among others: Beever 2007:171-72; Oakeshott 1975:412; Stevens 2007:311).
The former approach has been very influential in analysis of the work of American courts, in particular the Supreme Court. Following on the footsteps of the legal realists who have argued that the legal considerations found in judicial decisions often fail to explain the actual motivation behind the decisions, many scholars of American courts have argued that the judges' politics provide the best explanation of judicial opinions. Thus, according to two leading proponents of this view, "[s]imply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he is extremely liberal" (Segal & Spaeth 2002:86).
This view is by no means universally accepted, but whatever its merits may be in explaining the United States Supreme Court, it is not clear how applicable it is to the analysis of other courts, especially those outside the U.S. American courts have long been unique in the degree to which they participate in the shaping of policy on politically divisive issues. In England, where legal realism has never had as much impact as it had in the United States (Duxbury 2005:54-69), the alternative, legalist, explanation still largely prevails. Accordingly, the legal reasons found in judicial opinions are still typically treated as the most reliable source for explaining the outcomes of cases and are closely analyzed by legal commentators. This scholarly difference reflects, I believe, an underlying difference in legal and political traditions.
While there have been some efforts to argue that English courts are influenced by political considerations (e.g., Griffith 1997; Robertson 1998), they have been few and far between, and even they have resulted in considerable criticism (e.g., Lee 1988:33-39; Minogue 1978; both directed at Griffith). Even these rare studies focused more on public law, leaving the area of private law mostly to doctrinal scholarship, which is still the dominant form of scholarship among English private lawyers. The question whether and how political ideology affects these areas of law was either unexamined, 1 or explicitly denied (Stevens 2009:651-52).
A full explanation for this difference is beyond the scope of this article, but I suspect it has to do with the different political traditions of the two countries. …