Beyond the judicial fairy tales.(Law)

THE RELICS of discarded empires present sad, even pathetic, spectacles. Once, when I was travelling through India, I came upon one of them in Ootacamund--"Ooty to the generations of British soldiers, civil servants and debutantes who served the Raj.

This was Mrs Grant. In 1969 she was still managing the Savoy Hotel in the centre of that faded hill station. The hotel had seen better days; but Mrs Grant made heroic efforts to keep up appearances. The threadbare carpets were covered by cheap rugs. The boiler to produce warm bath water had broken down, so Mrs Grant improvised. Nothing could persuade her that things were not the same as they had always been. She was marvellous and in many ways admirable. She was "staying on". But the world around her had changed forever. Now she too is gone. The Savoy is under new management. It has lost some of the charm of empire days. But it is rather more realistic. Nostalgia has been replaced by briskness. The boiler works.

I was reminded of Mrs Grant when I saw Wolfgang Becker's new film, Goodbye, Lenin!, recently. It is doing the rounds. It tells of the impact on true believers of the collapse in 1989 of a less benign empire than ever Mrs Grant knew. According to the film, on the eve of the removal of the Berlin Wall an idealistic devotee of the DDR regime of Erich Honecker has a heart attack and lapses into a coma. When the patient regains consciousness, weeks later, doctors warn that she must be given no news that would excite her. Mention of the disappearance of her beloved socialist state is verboten.

A farce ensues in which all the old paraphernalia of the recently discredited past are presented to the patient as if nothing has occurred. Young Osti boys are bribed to come to the bedroom singing the abandoned songs of the "Young Pioneers". Around the bed, the neighbours shout the rousing catchcries of the old era. One can see that some of them perhaps most--are confused. They miss the departed certainties. The lies are trotted out in an extended attempt--for the very best of motives--to keep alive the old ideology.

Everything comes unstuck when the patient feels well enough to venture outside the world of her apartment. In the real Berlin she sees the consumer society arriving in a flood. Looking up, she observes a helicopter carrying away a giant statue of Lenin, looking his most benign and heroic. The glasnost that Gorbachev had brought to the Soviet world could be hidden no longer. The spell of the old deceptions was broken.

Some people miss the pseudo-ideology of the good old days. In older people, especially, nostalgia for lost childhood beliefs is understandable. But, as Mrs Grant was eventually to discover in India, and the Ostis in Berlin, the old days will not return. Most of today's young have no time for their unsophisticated falsehoods.

In the law too we have our ideologies. They adapt to changing times and to the surrounding society and its culture. After decades, perhaps centuries, of acceptance of the "noble lie" of the declaratory theory of the judicial function and of so-called "strict and complete legalism" most of us, by the end of the twentieth century, had come to recognise the reality of the judicial role in a common law system. Judges face choices. Judges make law. They do so in construing the Constitution, interpreting legislation and reformulating the common law. In giving effect to their choices, judges are influenced not only by legal authority but also by legal principles and legal policy. They are affected by their values, sometimes unexpressed. Of course, they work within constraints. But to deny the creative function and duty of the judiciary in such cases is absurd. In recent decades the true debate in the law has shifted from the infantile insistence that judges should merely apply, and never make, the law to a consideration of when and why a new legal rule should be expressed by a judge. When restraint is called for in the judicial decision. And when a new rule is justified.