Law, Society, and Economy: Centenary Essays for the London School of Economics and Political Science, 1895-1995

By Richard Rawlings | Go to book overview

17
Judicial Legislation*

W. R. CORNISH


INTRODUCTION

The LSE Centenary Lectures in law have been a fine series. They include two very different essays in theory: Professor Unger's Chorley Lecture incites scholars to highly critical engagement beyond the range of the merely commentative; Professor Teubner's lecture reflects subtly on the relationships between discourses about law and its social functioning. His case for a distinctly legal discourse at once synthetic, independent, and in a sense ultimate, deserves sustained reflection.

Also in strategic vein, Sir Anthony Mason, recently retired as Australia's Chief Justice, defines a strictly limited place for fundamental law under democratic Constitutions which do not entrench full-scale Bills of Rights; and to the same general theme Sir Stephen Sedley adds his own thoughtful cadence. Professor Zander turns attention to the obverse side of judicial functioning by questioning many aspects of Lord Woolf's Report on access to civil justice,1 thereby raising as a root issue the proper balance of State and professional control over the process.

The other lectures use more or less specific areas of law to develop a variety of themes. Those most linked to theoretical issues are, first of all, Professor Collins's essay, which proposes a re-seeing of contract doctrine-- if I may encapsulate it crudely--from the outside in, rather than from the inside out: starting, that is, from the conditions imposed by the social market, rather than the terms agreed in the sanctified individual bargain. Secondly, Lord Wedderburn invites us to see labour relations and their legal underpinnings from Harold Laski's viewpoint, with its strong emphasis on those psychological default modes of judges which he characterised as 'law-behind-the-law'. And thirdly Her Excellency Judge Higgins reflects upon a century's devotion to international law scholarship in the School and the gradual acknowledgment of international law precepts by English judges.

____________________
*
A revised version of a lecture delivered on 12 December 1995.
1
Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales ( Lord Chancellor's Department, London, 1995).

-359-

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