LECTURES - College of Social Sciences and International Studies ...

The Lion and the Ox
do parents have a right to beat their children? 19 does sovereign
immunity extend to perpetrators of crimes against humanity r°
The courts in such situations have choices of principle to
make—between the injustice of deciding that the law is not
what it was thought to be and the injustice of tolerating something
that has become or is becoming intolerable. Although
there are principles of fairness which limit the choice—for
example that a change in the law may not criminalise what
was an innocent act when it was done, 21 nor destroy vested
rights 22 —there remains a large area governed in the last resort
only by the courts' receptivity or resistance to change. And
because the courts decide only real cases, not abstract questions,
there is superimposed the problem that the just solution
of a hard case may make law which produces fresh and unexpected
injustices in other cases. It is not a sufficient response to
this familiar problem to counsel endless judicial caution by
reciting the adage that hard cases make bad law; bad law
makes hard cases too.
The rhetoric of the law should not obscure the fact that
justice—of process as much as of outcome—is in large part a
matter of personal perception. What justice a legal system
achieves is more likely to be a negotiated outcome with rough
edges and loose ends than a triumphal result pronounced to
universal acclaim. And the complication of justice is added
to by disparities of access. With the coming of the Human
Rights Act one can venture some predictions, based both on
experience to date in this country 2 and on the experience of
Canada under its 1982 Charter of Rights and Freedoms and of
New Zealand under its Bill of Rights Act 1990. One is that
when—at a date which is not likely to be before the middle of
the year 2000—the human rights shop opens, that endlessly
indignant litigant, the drinking driver, will be waiting there.
He will be hoping to follow the trail blazed early in the life of
the Charter by his Canadian counterpart, who was stopped by
the police at 3 a.m. in sub-zero conditions, well inside the
Arctic Circle and went to court to assert that the right to
counsel entitled him not to have to blow into the bag until
his lawyer had been brought several hundred miles from
19 See most recently the decision of the European Court of Human Rights in A.
v. U.K. [1998] E.H.R.L.R. 82.
20 R. v. Bartle, ex p. Pinochet [1998] 3 W.L.R. 1456; March 24, 1999.
21 See the European Convention on Human Rights, Art. 7.
22 See F.A. Bennion, Statutory Interpretation (3rd ed.), s. 97.
23 From Sunday Times v. U.K. (1979) 2 E.H.R.R. 245 to R. v. Home Secretary, ex p.
Brind ]1991] 1 A.C. 696.
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