Why The Law Must Prevail Over a Judge's Interpretation of Fairness

The conflict between legal certainty and moral intuition is significant when considering whether judges should be permitted to decide cases based on what they think is fair (Sales, 2025). Judges are elected public officials, appointed to determine legal rulings in court proceedings (Cambridge Dictionary, 2019). As evident in the United Kingdom’s legal system, judges use precedent and the constitution to reach verdicts, thus, in principle, not having freedom to reach judgments based on what they think is fair as they cannot disregard past rulings believing that a different outcome would be better (Courts and Tribunals Judiciary, 2020). Judges must “not give judgments that reflect their personal views” but rather “based only on their assessment of the legal and factual merits of the case” (UK Supreme Court, 2024). In one respect, judges deciding cases based on what they think is ‘fair’ can be understood as allowing them to interpret the law as they deem best for each case, disregarding legislation and precedent and rather allowing themselves to by influenced by personal opinion. While allowing them to consider cases in this manner seems to be a fundamentally attractive approach, there exists a complex subjectiveness in the meaning of ‘fair.’ Through introducing personal opinions in decision-making, the system’s vulnerability to judicial biases increases; threatening the foundations of the modern democratic legal system whereby all citizens possess the right to ‘equality before the law’ (European Union Agency for Fundamental Rights, 2018). Furthemore, in doing so, legislation and its influence is undermined, as emphasis is primarily placed on opinions. The nature of the UK’s legal system operating under a system of precedent, makes it inevitable that judges’ interpretations of cases do play a role in judicial outcomes. However, the extent to which judges’ personal opinions influence cases’ outcomes must be discreet and limited to ensure ‘legal certainty’, predictability and ‘equality before the law’ (UCL Faculty of Social and Historical Sciences, 2022).

At first glance, allowing judges to make decisions based on personal interpretations of fairness seems logical, as they are well educated legal specialists capable from distinguishing ‘right’ from ‘wrong’. As alluded to by the literary text ‘To Kill a Mockingbird,’ ‘fairness’ is a subjective matter; interpreted differently by distinct social backgrounds. By exposing apparent differences in individuals’ perspectives, in the false accusation of an African American man, personal beliefs and societal values are portrayed to adveresely impact unjust decision making. This is supported by empirical evidence provided by a study conducted by the Univeristy of Manchester. Rather than acting solely on a case’s merits, 55.6% of legal professionals reported they “have witnessed one or more judges act with racial bias in their treatment of defendants (Monteith KC et al., 2022: 15).” This injustice is attributable to the existence of theoretically sound judicial discretion permitting decision-making deriving from judges’ own evaluation of the circumstances and what, to them, appears to be a ‘fair’ outcome (Cambridge Law Faculty, 2024). Through disregarding legislation and allowing decisions influenced by bias, a system already affected by discrimination would become even more vulnerable to judicial errors -precluding the certainty and consistency the law should offer defendants. This would inevitably lead to an unjust system revoking people’s right to a “fair and public hearing” as per Article 6 of the ECHR (European Union Agency for Fundamental Rights, 2018). Thus, in preserving the court’s legitemacy and objective decision-making, judges should not be allowed to decide on cases based on what they think is fair.

Moreover, with permitting judges to consider cases based on their interpretations of what ‘fair’ is, implications arise regarding democratic decision-making. Unlike politicians they are not elected individuals chosen by society. Rather, they are appointed by a commission. They do not necessarily have to represent the public view. Previously selected by the Lord Chancellor (Government Minister), since April 2006, judges are now not solely appointed on merit but are rather selected from a pool of “divers[e]” candidates which are intended to “reflect all sections of society that are in position to provide candidates of the requisite ability” (Courts and Tribunals Judiciary, n.d.). Despite the ‘new’ system attempting to establish a more inclusive judiciary, the selection is similarly based on “requisite ability;” not guaranteeing that all societal groups will be represented (Judicial Appointments Commission, 2025). While candidates do indeed constitute a wide range of social and professional backgrounds, evidence from a 2024 study by the Ministry of Justice demonstrates that 86.1% of all judges were white and 8.2 where Asian -out of those whose ethnicity was known (Ministry of Justice UK, 2020). Consequently, an issue arises regarding whether those elected can comprehend all societal groups’ endeavours; leaving certain minority groups under-represented.  Due to such apparent inconsistencies within the judiciary, judges should not be allowed to make decisions based on their individual views as it is doubtful as to whether they represent the values and principles of the people. That is not to suggest that in the case that all societal groups were represented in the courts, that judges would be allowed to decide cases based on what they think is fair. The possibility of unequal representation and

inconsistencies regarding minority support is simply a factor contributing to the overruling of judges deciding cases based on opinion. In prohibiting large personal influence in decision-making, likelihood of ‘judicial activism’ is minimised. This mitigates the risk of parliamentary sovereignty and democracy being undermined by courts which “have exceeded their power to interpret and develop the common law” (Incorporated Council of Law Reporting, n.d.). Despite society not having any direct say in the judges elected, through minimising the impact of their personal influence on decision-making, dissatisfaction within the public is limited and democratic decision-making is upheld.

In addition to the complex subjectivity of what ‘fair’ is, as well as the possible issue of judges’ interpretations being misaligned with the public’s values, judges deciding cases based on personal beliefs undermines and disrupts the Parliamentary system. In the United Kingdom, Parliament has been assigned the role of “pass[ing] or reject[ing] laws” (The British Institute of Human Rights, 2024). Judges’ powers extend to applying and interpreting the law, ensuring it is being followed. They construe legislation according to “their own judgment;” not possessing the authority make amendments to the laws, what they are and how they are enforced in each case (Courts and Tribunals Judiciary, 2020). By interpreting the law, they are authorised to analyse the facts of the case and determine which law is applicable. Permitted to clarify any ambiguous part of the legislation, they are not to allow personal judgment to affect them in precluding the adherence of legal principles. In deciding cases based on their beliefs of fairness, judges would disregard the legislation which has been created, ‘blurring the separation of powers’ through overstepping their position and undermining Parliamentary authority (British Institute of Human Rights, 2022). To prevent this, the Human Rights Act 1998 (HRA) has been created, which does not give the court the right to ‘veto’ legislation but rather to “make a declaration” of any “incompatibility” they are dissatisfied with -according to Section 4: Declaration of incompatibility (UK Parliament, 2013). This right can only be exercised by the ‘higher courts,’ simply imposing a pressure on the Parliament to make amendments, rather than instantaneously invalidating the Acts. In authorising judges to make decisions deriving from their own interpretations of ‘fair,’ it is likely that they may ignore precedent and thus discredit the ‘case law’ system of the UK; weakening society’s trust in such a disorderly system whose very foundations are being doubted. The shifting of power from the Parliament to the judges risks the potential abuse of excessive, unchecked power by individuals who prioritise their personal morals over legal principles, whilst also creating a system dependent on the judges themselves rather than the authority of the law. Hence, to guarantee future foreseeability and stability -which is currently provided by a hierarchically organised system- Parliament should retain its authority. Judges should not threaten their commanding position.

At present, judges make rulings through applying and interpreting the law. Nevertheless, they use legislation and precedent to reach a verdict. To maintain certainty, consistency, predictability and the absence of bias, little room for different interpretations of fairness should be permitted. Alternatively, a lack of ‘fair labelling’ -particularly regarding criminal wrongdoings- would adversely affect individuals whose offences may not “fairly represent… [their] wrongdoing” either because of concealment or false exaggeration (Chalmers and Leverick, 2008). Furthermore, with reduced restrictions in decision-making, judges might disregard legislation created by publicly elected individuals and pronounce verdicts which do not align with societal principles and the democratically elected system under which the nation operates. Dependency on judges rather than the legislation would severely undermine Parliament’s legitimacy, giving excessive power to ‘un-elected’ individuals. Prioritisation of clear “principles, laid down authoritatively by the superior courts” would eventually transform into a system of ‘palm tree justice’ lacking solid legal foundations (Sales, 2022). Conclusively, judges should not be permitted to decide cases based on what they think is fair to ensure the upholding of the Rule of Law; preventing arbitrary justice, limiting bias and preserving the UK’s hierarchical structure and democratic decision-making.

Bibliography:

British Institute of Human Rights (2022). BIHR Explains: The Separation of Powers. [online] YouTube. Available at: https://www.youtube.com/watch?v=PBHmRhO6hTM [Accessed 6 Jan. 2026].

Cambridge Dictionary (2019). JUDGE | meaning in the Cambridge English Dictionary. [online] Cambridge.org. Available at: https://dictionary.cambridge.org/dictionary/english/judge.

Cambridge Law Faculty (2024). ‘Judicial review of discretionary decision-making: differences of approach’. [online] YouTube. Available at: https://www.youtube.com/watch?v=hqFj0NnDyfU [Accessed 2 Apr. 2026].

Chalmers, J. and Leverick, F. (2008). Fair Labelling in Criminal Law. The Modern Law Review, 71(2), pp.217–246. doi:https://doi.org/10.1111/j.1468-2230.2008.00689.x.

Courts and Tribunals Judiciary (n.d.). Judicial appointments. [online] Courts and Tribunals Judiciary. Available at: https://www.judiciary.uk/about-the-judiciary/our-justice-system/jud-acc-ind/jud-appts/.

Courts and Tribunals Judiciary (2020). The judiciary: the basics. [online] Available at: https://www.judiciary.uk/wp-content/uploads/2020/07/judiciary-handouts.pdf.

European Union Agency for Fundamental Rights (2018a). European Convention on Human Rights - Article 6. [online] European Union Agency for Fundamental Rights. Available at: https://fra.europa.eu/en/law-reference/european-convention-human-rights-article-6.

European Union Agency for Fundamental Rights (2018b). European Convention on Human Rights - Article 14. [online] European Union Agency for Fundamental Rights. Available at: https://fra.europa.eu/en/law-reference/european-convention-human-rights-article-14.

Incorporated Council of Law Reporting (n.d.). Judicial activism. [online] ICLR. Available at: https://www.iclr.co.uk/knowledge/glossary/judicial-activism/.

Judicial Appointments Commission UK (2025). Diversity - Judicial Appointments Commission. [online] Judicial Appointments Commission. Available at: https://judicialappointments.gov.uk/about-us/diversity/ [Accessed 2 Apr. 2026].

Ministry of Justice UK (2020). Judges and non-legal Members of the Judiciary. [online] www.ethnicity-facts-figures.service.gov.uk. Available at: https://www.ethnicity-facts-figures.service.gov.uk/workforce-and-business/workforce-diversity/judges-and-non-legal-members-of-courts-and-tribunals-in-the-workforce/latest/.

Sales, P. (2022). PROPRIETARY ESTOPPEL: GREAT EXPECTATIONS AND DETRIMENTAL RELIANCE. [online] Available at: https://supremecourt.uk/uploads/Proprietary_Estoppel_Oxford_Property_Conference_Lord_Sales_0ec585c90b.pdf.

Sales, P. (2025). Certainty and Flexibility in the Law. Judicial Review, pp.1–12. doi:https://doi.org/10.1080/10854681.2025.2467592.

The British Institute of Human Rights (2024). Separation of Powers, Parliamentary Sovereignty & the Rule of Law | BIHR. [online] British Institute of Human Rights. Available at: https://www.bihr.org.uk/get-informed/legislation-explainers/separation-of-powers-parliamentary-sovereignty-the-rule-of-law.

UCL Faculty of Social and Historical Sciences (2022). What is the rule of law? [online] UCL Faculty of Social & Historical Sciences. Available at: https://www.ucl.ac.uk/social-historical-sciences/constitution-unit/constitution-unit-publications/constitution-unit-explainers/what-rule-law.

UK Parliament (2013). Human Rights Act 1998. [online] Legislation.gov.uk. Available at: https://www.legislation.gov.uk/ukpga/1998/42/section/4.

UK Supreme Court (2024). Parliament and the UK justice system. [online] Available at: https://supremecourt.uk/uploads/parliament_and_uk_justice_system_final_3a27f729bb.pdf.