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What does Lord Scarman Mean


In McLoughlin v O’Brien, Lord Scarman stated that “by concentrating on principle the judges can keep the Common Law alive, flexible and consistent, and can keep the legal system clear of policy problems which neither they nor the forensic process which it is their duty to operate, are equipped to resolve.” [1] Lord Scarman lays down the principle attempting to strike a balance between the role of the judiciary and the legislature in the development of Common Law.

Lord Scarman’s statement can mean that in the ever changing society with multifold social problems, Common Law has to evolve to keep pace with such changes. In a legal set up where laws remain stagnant, justice is defeated due to law being irrelevant to current social problems. Judiciary adjudicates according to existing principles and if any principle of law attracts policy risks, legislature has to either impose limitation on policies or create new legislation.

Legal principles are standard rules established and proven to the effect that laws and regulations are found conforming to them. Judges use the tools of flexibility and consistency that guide and enable evolution of Common law within certain boundaries. Common law innately empowers judges to adopt a flexibility approach while interpreting statutes and at the other end binds legislature to set limits therefore bringing certainties. This eventually results in a consistent development of law and the demands of justice being met.

Court can be both flexibility and consistency

Many may argue that courts cannot achieve consistency in applying a legal principle while adopting a flexible interpretation of statutes. However, many legal systems including Common law systems developed because of a well balanced exercise of flexible interpretation by judiciary subject to or in conformity with creation or changes of policies by the legislature.

The legislature and the judiciary are intertwined and interdependent in their roles and functions. On one hand, Judiciary sets out principles of law that legislature may act upon and on the other legislature defines parameters and guideline around how judiciary needs to interpret legal principles. To cite an example, in Young v Bristol Aeroplane Co.,[2] the Court of Appeal deviated from its earlier decisions by choosing between contradictory precedents and based on them, laid down legal principles outside the scope of statute.

Courts’ discretionary power to interpret statute comes with a major challenge of defining boundaries and curbing risks of uncertainty. Lord Scarman stated that such risk varies from one branch of law to another and in order that the determination of certainty does not hinder disposal of justice,[4] a limit based on social, economical, and financial policy has to be drawn. In R v R,[5] Lord Keith went beyond the Parliament’s definition of rape to include the word “unlawful” that exempted non-consensual marital intercourse from the crime of rape, by stating that “unlawful” if only meant “outside marriage” did not include multiple exceptions to rape within marriage that were laid down by the courts.

In Caparo v Dickman,[7] Lord Bridge stated that every situation should not be interpreted based on single general principle that create difficulties and uncertainties. It should be individually defined and independently analysed to serve as a guide to the mere existence and legal limits of duties of care.

To conclude, in order that laws are developed, people have right to laws that are certain and protect their social, economical and financial rights and liabilities, and at the same time, there is flexibility to respond to new social or legal situations that demand legal resolution. One section of the legal professional may say that certainty in law enables determination of the level of rights and liabilities beforehand and another section may differ to state that certainty leads to rigidity and stagnancy of law pushing justice to the remote end of legal system.



    1. Lawrence I, "Punishment Without Law: How Ends Justify the Means In Marital Rape" (2012) 18 (1) The Denning Law Journal 37.
    2. Lee J, "The doctrine of precedent and the Supreme Court" (2011) Inner Temple Academic Fellow’s Lecture 23.
    3. Lutz-Christian W, "Law and Flexibility-Rule of Law Limits of a Rhetorical Silver Bullet" (2011) 11 J. Juris 549.
    4. Oliphant K, "Against Certainty in Tort Law" in Stephen G A Pitel, Jason W Neyers, Erika Chamberlain (eds.),
    5. Tort Law: Challenging Orthodoxy (Oxford: Hart Publishing 2013)
    6. Wolff Lutz-Christian, "Law and Flexibility-Rule of Law Limits of a Rhetorical Silver Bullet" (2011) 11 J. Juris 549.
    7. Ivan Lawrence, "Punishment Without Law: How Ends Justify The Means In Marital Rape" (2012) 18 (1) The Denning Law Journal 37.
    8. K Oliphant, "Against Certainty in Tort Law" in Stephen G A Pitel, Jason W Neyers, Erika Chamberlain (eds.),
    9. Tort Law: Challenging Orthodoxy (Oxford: Hart Publishing 2013) 6.

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