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A Minority Opinion?

Maccabaean Lecture in Jurisprudence, by the Rt Hon. The Baroness Hale of Richmond PC FBA, on 13 November 2007.

An important difference between ‘academic’ and ‘real’ law is that academic lawyers do not have to decide real cases. They are not only free to hold, but are expected to express, opinions both about what the law is and about what it should be. Consistency of approach is a virtue. Legal practitioners have to advise their clients on what they think the law is, not what they think it should be. Judges have to decide what the law is, not what it should be. Consistency of approach may be viewed with suspicion rather than approval.

But there are ‘hard’ cases in which a real choice exists as to what the law is, especially in the highest courts of appeal. No judge can decide these without forming a view about what the law should be. As well as the established techniques of legal reasoning and statutory construction, she will bring her own experiences and philosophy to the task.

An important function of the law in a democracy is the protection of minorities and disadvantaged groups or individuals. Judges should be able to contribute from a range of different experiences and perspectives, including a minority view. For a judge to profess a particular philosophy should not be a problem, unless that point of view is inconsistent with the fundamental values of the law in a democracy or is allowed invariably to dictate the result. Out of today’s minority opinion may be forged the consensus of tomorrow.

Speaker: the Rt Hon. The Baroness Hale of Richmond DBE PC FBA, Lord of Appeal in Ordinary; Chancellor, University of Bristol; Baroness Hale was elected an Honorary Fellow of the British Academy

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