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interpretive. At the most open textured end of the spectrum are the development of
judge made law and application of legal principle.
Legal principle
Lord Donaldson explains the role of principle in legal process:
This process of using the common law to fill gaps is one of the most
important duties of the judges. It is not a legislative function or process
– that is an alternative solution the initiation of which is the sole
prerogative of Parliament. It is an essentially judicial process and, as
such, it has to be undertaken in accordance with principle.
Lord Donaldson, Re F [1990] p. 13
Eckhoff (1976) describes legal principle – in contrast with legal rules – as vague and
general, “serving as grounds for interpreting or changing laws and as ground for action
in cases not covered by rules of law… They serve as a kind of ‘normative raw material’
out of which new law is made” (Eckhoff, 1976, p. 211). The best interest test is an
example of a legal principle.
In the introductory chapter I referred to Re F [1990], the case of a 36 year old woman
with learning disability for whom non-therapeutic sterilisation was proposed. The
English courts were asked to intervene. The common law respects the autonomous right
of any person to consent or refuse medical treatment. However, F lacked the capacity to
consent to the sterilisation procedure. In the absence of any other legal mechanism for
medical treatment and non-treatment decisions, the House of Lords adopted the best
interest principle. The best interest test finds its origins in family law, specifically child
welfare and custody cases (Henaghan, 2002; Mnookin, 1975; 1985; Myser, 1994). The
principle developed from the courts’ assertion that when a proxy makes a decision on
behalf of a child, they must act out of concern for the child’s welfare (Kennedy &
Grubb, 2000, p. 778).
In line with Hart’s open texture thesis, the vague and interpretive best interest test
developed for making health care treatment decisions on behalf of adults who lack
capacity. But how is the standard to be interpreted and applied? Within the current
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