Infernal Ramblings
A Malaysian Perspective on Politics, Society and Economics

Grey Areas, Fringe Cases and the Common Law

Written by johnleemk on 4:00:58 am Feb 10, 2007.

A common criticism when it comes to the construction of statutes is their level of subjectivity. Whether it is something with as much gravitas as the Constitution of Malaysia or simply a Wikipedia policy, it is my experience that people tend to find fault with the use of subjective words. For example, what would be a "reasonable" statute that limits freedom of speech? How can we define what is reasonable? We can't, the argument goes, so why do we leave the definition of reasonableness in the hands of judges? Why can't our laws spell it out starkly?

I have a friend who, after her first few law classes, complained that the law is such an irritatingly grey subject. Instead of providing black and white answers to social problems, as she had been anticipating, it only reflects the varied nature of society and individuals by treating them in several shades of grey.

I don't really think you can blame people for thinking that the law can set our society straight. After all, court decisions at first glance seem to be pretty black and white. Either you can do something, or you can't do something. Either the law says this or the law says that. You can't have niggling in-betweens.

Unfortunately, this idealised conception of the law and its operation is merely that - an idealised conception. The law is not some perfect automaton that can discern and divine the precise and correct judgement for every situation. In fact, as a student progresses in the study of law, the only thing that remains precise, in black and white, is the fact that there is never one single correct way to look at the law, and that everything is some shade of grey.

Why is this so? Simply because, as said earlier, law is a reflection of society. It does not exist on some higher plane, divorced from all semblance of reality - rather, it sits on the same level as the rest of us, and reflects the odds, ends, and vagaries of human life. After all, think about it - are there any hard, ironclad watertight rules that we live by? Nope, not "thou shalt not kill", for surely killing in self-defence is justified. What about "thou shalt not steal"? But what if theft was necessary to prevent a greater evil? Even if you can come up with a clear answer to these problems that will be just and fair every single time it is applied, it is certain that this answer will be controversial, and even more certain that determining what this answer should be will be difficult, if not nigh-on-impossible.

For the same reason, developing codified systems of law, where the law spells out a rigid response for every possibly conceivable situation that may arise, is something that has rarely been done. Perhaps the most successful code to date has been the Napoleonic Code, which is the basis of the law in a number of European countries today, as well as the American state of Louisiana (a former French colony). Most other legal systems have been much more flexible in nature.

The American system, for example, has traditionally given judges broad leeway in interpreting the law; for example, the United States Supreme Court ruled that the Constitution permitted the "separate but equal" principle of segregation in the late 19th century, and then the same Supreme Court ruled that the same Constitution forbade the "separate but equal" principle in the mid-20th century. The lack of a strong system of stare decisis (binding precedent, where courts are bound by relevant previous decisions, especially those of higher courts) has also cemented the liberal approach there.

On the other hand, stare decisis and the common law have actually been used to facilitate greater flexibility in the English legal system. The system of precedent creates a sense of certainty in the law, and yet what the law is can be altered substantially. This process is facilitated by the simple fact that no two cases are ever alike. The simple examples of Merritt v Merritt and Balfour v Balfour are of some use here. In both cases, the plaintiff and defendant were married and had contracted with one another to do something. When one party failed to uphold their end of the bargain, the other naturally sued. Yet in one case, the suit succeeded while in another case, the suit did not. The reason? In one case, the couple were fully married and had a written contract; in the other, they were separated and had a verbal contract. There is more than enough wiggle room for the courts to "distinguish" past decisions and create new law to deal with unexpected situations.

This idea may be a bit difficult to grasp, especially because most of us have this conception of judges as being merely concerned with the facts of a case. In the vast majority of cases, they are. The law works just fine in these 90% or so. But for the rest, the law does not operate smoothly because of unforeseen circumstances. For instance, should a son who murdered his mother be allowed to inherit her estate? Nothing in the law prevented him from doing so, and being her sole issue, he had every right to inherit it. Nevertheless, in Re Sigsworth, the British House of Lords disagreed, stating that they felt this simply could not have been what Parliament intended when it passed the statute concerning inheritances. A similar case arose in DHSS v Royal College of Nursing, where an old statute permitted only doctors to carry out abortions. With the development of technology that allowed nurses to perform an abortion simply by administering an injection, it seemed ridiculous for it to be illegal for nurses to perform an abortion, despite the clear language of the law. Again, the British courts held otherwise, noting that the purpose the original law had been passed in the first place was to facilitate the greater availability of abortions.

Permitting us to be bound by the black and white language of statutes, no matter how grossly inapplicable they may be in a particular situation, is unconscionable. For example, it was established in the case of Hedley Byrne v Heller that a person can be sued for negligent misstatement if and only if he gives that advice in a professional capacity. Nevertheless, this was disregarded in Chaudhry v Prabhakar (another British case), because even though the defendant had given advice concerning the roadworthiness of a car in a social setting, the way he had presented himself and his authority was held to have made him liable. It is all but certain that the decision in Chaudhry will not be followed because of the unique circumstances of the case, but the lesson it teaches us is clear: the same law that applies in a majority of cases may not be applicable to one or two rare cases.

It is precisely because of this subjective nature of the law that we need judges. Judges exist not merely to adjudicate the law and decide the facts of a case, but also to ensure that justice is done - even if the law has to be bent a little to adjust to the grey areas of a particular circumstance. This discretion is an important key to maintaining flexibility in the law.

It would be great, true, if we could rely on Parliament alone to keep the law up to date. But Parliament (and really, any legislature) has a great deal of trouble agreeing on how to word a law, and even if they attempt to include every technicality in the law, effectively making it a code, they will never be able to make room for every eventuality. The role of Parliament is not to draw up specifics for a law; it is to lay out the legal principles that form the basis of the law. From these general principles, the courts can determine what Parliament intends to accomplish by passing a law, and thereby give effect to Parliament's intention, while maintaining their discretion for handling certain complex and unexpected situations.

This discretion of judges is something that should be preserved by forward-looking societies. We cannot hope for a cookie-cutter approach to work every single time, and expect to force the oddball cases into a mould meant for the normal circumstances. Neither can we attempt to handle all cases by treating them like oddball cases, for this would only result in hair-pulling absurdity. The grey and subjective nature of the law is what makes it work, and we should keep it that way.

Similarly, the common law and principles of "natural justice" permit the development of the law in such a manner that is conducive to steering a middle approach between the Scylla of treating all situations like the typical case, and the Charybidis of treating all situations like the atypical case. Instead of requiring Parliament to legislate a code on the specifics of what the law should be, we can rely on the courts to develop the law, steering a careful approach and striking a balance that conforms with what we would typicall expect to be "fair", instead of being forced to heed the arbitrary distinctions that an explicit legal code may make.

While of course we must rely on the legislature for many of our laws, in many others, the common law serves us in good stead. For example, the whole field of negligence in tort law (at least for Commonwealth countries) was forever altered by Donoghue v Stevenson, which established the "neighbour principle" — namely that we owe a duty of care to those who we can reasonably foresee will be affected by our actions. It seems obvious to us that if a man carelessly produces a bottle of ginger ale, and if we purchase it and give it to a friend who falls sick, the friend should be able to sue for damages — yet till the decision of Donoghue in the early 20th century, no such action was legally possible. The gaps of the law are ably filled in by the courts in this respect — where something seems obviously fair and just to us, but no recourse is available in the law, it is the courts who can best address the problem. The common law, instead of statutes, is particularly suited to solving problems of "natural justice".

Similarly, in land law, the rule in Rylands v Fletcher arose to fill a gap between the laws of nuisance, trespass and negligence. Until the late 19th century, you could not sue your neighbour if something hazardous escaped from his land to yours through no fault of his own. Unless he was careless, you could not sue for negligence; since there was no indirect interference with the use or enjoyment of land, you could not sue for nuisance; and since no damage was incurred as a direct result of the defendant's actions, you could not claim for trespass. To address this lacuna, where the typical laws clearly did not apply and yet some action was justified, again, the courts created law to conform with our sense of what is just and fair.

Parliament can be relied on to set out specific laws for issues of limited scope, where what would be just is not immediately clear, or where there is a clear issue of public policy involved. But otherwise, I would submit that it is not altogether a bad idea to rely on the courts to set us straight, as far as the natural law is concerned. The authoritarian former Prime Minister of Malaysia, Mahathir Mohamad, was very distrustful of the courts and the common law because he knew that even if Parliament contradicted our human sense of what is fair and just, the courts could strike down Parliament's rulings. This is why he took pains to emasculate the judiciary, and to cripple the Malaysian court system, and is also why the Alliance government was all too happy to support a Constitution which did not permit the courts to judge what constitutes a "reasonable" infringement of fundamental liberties. Perversions of justice and violations of fundamental rights theoretically guaranteed by the Constitution have been commonplace in Malaysia since independence precisely because of such a mistrust, which began with the first Alliance leaders and was taken to its natural end by Mahathir. A responsible legal system will treat the judiciary as a co-equal branch of government, and as an institution that itself is qualified to tackle fringe, grey-area cases, where more than ever, a balance must be struck.

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