Part considering Llewellyn’s statement, it is important to

Part B: Understanding Law (LLB) Coursework 2017-18, Research Essay. Question 1:
In considering Llewellyn’s statement, it is important to make a distinction between cases before and after being heard. The courts have the ability to refuse to hear certain cases (However, this could only be based on certain grounds that provide) if there is reasonable cause to do so. However, this is entirely different to refusing to decide a dispute. Once a case has been heard, it is simply not appropriate to refuse to reach a decision, unless a conflict of interest can be proved. Otherwise this would undermine the legal system and defeat the point of courts themselves. 
People take matters to court in order to seek resolution as the very purpose of the courts is to provide solutions to the most difficult and dangerous cases. As Charles Breitel stated, “Courts must decide the cases presented to them; they have no choice to abstain for any reason. Their unsureness, the difficulty of the case, or the absence of clearly applicable law is no excuse.” This essay examines the complexity and legality of refusing court cases, even in the most difficult of situations, and discusses two complex cases, namely: R v Human Fertilisation and Embryology Authority, ex parte Blood and ‘The Case of the Speluncean Explorers’. These cases will be analysed in detail in order to address the reasons why it is necessary for judgements to be reached in all cases, no matter how hard, dubious, or dangerous.

Summary of R v Human Fertilisation and Embryology Authority, ex parte Blood: 

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Mrs.Blood married Stephen in 1991. Towards the end of 1994, the couple decided to actively start trying to conceive, but sadly, at the beginning of 1995, Stephen contracted meningitis. This was before his wife was able to become pregnant. A couple of days later, Mrs.Blood enquired with the Doctors regarding taking a sample of her husband’s sperm. At this time he was in a coma. The sample was taken via the process of electro-ejaculation, and entrusted to the Infertility Research Trust, and so too was the second sample the following day, shortly before Stephen Blood was declared clinically dead. Mrs.Blood later sought permission to access and ultimately utilise the samples in order to conceive a child. The Human Fertilisation and Embryology Authority believed that allowing Mrs.Blood to use the samples would be against the Human Fertilisation and Embryology Act. She then proceeded to request the samples be exported to Belgium, where treatment is legal. However, the Authority refused. Mrs.Blood then applied for judicial review, which was dismissed. When she appealed this decision the Authority considered her case in 1996, and the previous decision was reaffirmed, the main reason being as Mr.Blood had not consented to the exportation or utilisation of his sperm. As he was dead, there was no way of gaining consent.
Mrs.Blood appealed the ruling, and the court decided that the case raised three main issues, namely: the storage and use within the U.K., the law which applied to the exportation of the samples, and the validity of the authority’s decision. The court analysed each of these issues but ultimately, it was held that despite the decision of the court, the appeal must be allowed. This was as a result of the failure to consider Art.59 of the EC Treaty—following this case, no further case could exist wherein a mans sperm was obtained and preserved without consent. The court ruled this way as they claimed it was unclear how the Authority would have acted if they had considered these two factors. However, this case remains controversial as many believed the ruling to be incorrect.

The complexity of R v Human Fertilisation and Embryology Authority, ex parte Blood: 

From reading the facts of this case, it is immediately clear that it is inherently complex. The decision could certainly be considered to be both hard and dubious. The ruling in all cases impacts and shapes the future of the law, and that can be seen here. If clarification was not given on the legality of contracting sperm without permission, then potentially dangerous cases could have arisen in the future. The fact that clarification was provided, should ultimately mean this is a one of a kind case. As stated: “The fact that storage cannot lawfully take place without written consent, from a practical point of view means that there should be no fresh cases.” As such, it’s evident that the decision, in this case, was vitally important. 
However, the importance of a decision does not alter the ease with which that decision can be reached. As Lord Woolf said in his judgement: “Unfortunately, her case raises problems for which there are no clear precedents.”, highlighting how difficult and unique this particular case was. However, this difficulty did not deter the judges, rather it made their decision more complex. As Lord Woolf said, “This is bound to be a slow process even where the courts have done their best to ensure expedition.”, exemplifying how whilst complexity within cases may yield a more time consuming and thoughtful ruling, it does not constitute a dismissal. 
But why would a dismissal have been so bad? This case is particularly important as the decision could have resulted in the creation of two human lives. As a result, the ultimate outcome of the case was extremely controversial. The case resulted in harsh criticism of the Human Fertility and Embryology Authority as a result of their negligence to follow the law and the government of the time ordered a review of the law in order to ensure this would not happen again. Additionally, Mrs.Blood was criticised. Richard Holloway, Bishop of Edinburgh, and a member of the Human Fertilisation and Embryology Authority said the families circumstance raised “complex” issues regarding posthumous parenting. This exemplifies how all decisions in the courtroom are multi-faceted and do not always warrant support from the public. However, it is still vital that they be made in order to reinforce our legal system. 

III. Summary of ‘The Case of the Speluncean Explorers’: 

The “Case of the Speluncean Explorers” is a fictitious article published by legal philosopher Lon L.Fuller. The defendants were four members of the Speluncean Society, an organisation of amateurs with an interest in exploring caves. In early May 4299, the group and Roger Whetmore penetrated the interior of a limestone cavern and ventured inside. Shortly after, a landslide occurred causing heavy boulders to fall and block the only opening to the cave. The men awaited rescuing but the rescue job proved to be very difficult, accumulating a great expense of 800,000 frelars and causing ten lives to be lost during the rescue effort. On the 20th day, the men were able to communicate with the rescue party using a portable wireless machine. During this communication, they were informed they would not be rescued for at least ten days. They proceeded to request the advice of a physician, who told them they would be unlikely to survive the duration on the provisions that they had left. Communication was silent for eight hours, after which the men asked the physician if they would survive if they consumed human flesh. The answer was yes. Whetmore, who was speaking on behalf of the men, attempted to seek further advice on this matter, however, no one was willing to provide such advice. Communications then went silent. The men were successfully rescued on the 32nd day where it was learned that on the 23rd day, Whetmore had been killed and eaten.
After the rescue, the defendants were indicted for the murder of Roger Whetmore. They were then convicted and sentenced to the death penalty in the form of hanging. They petitioned this decision, and five judicial responses were provided before a judgement was reached. Each judge gave a different reasoning as to whether or not the survivors were guilty of murder. Justice Truepenny affirmed on the grounds that the murder statute obviously applied in this circumstance. Justice Keen agreed with this, and stated it was not his responsibility to decide based on morals. Justice Handy reversed the ruling as he acknowledged that the statute did apply to the situation, as a man was murdered, however, argued that common sense must be applied. Justice Foster provided two reasons that the statute was inapplicable. The final judge was unable to reach a decision and therefore recused himself. One of the statements he made was that it would be absurd to put these men to death after ten heroic workmen died trying to save them. As a result of the tie in these rulings, the original conviction was upheld and therefore the men were sentenced to death. 

The complexity of ‘The Case of the Speluncean Explorers’: 

The complexity of this case lies in the juxtaposition between morality and upholding the law. Every judge makes statements in their rulings that imply they do not believe that these men should be sentenced to death. However, some of them do acknowledge that in accordance with the law, it is their duty to uphold and apply the statue as it is written. These contradictions of interest make it an extremely difficult decision for the judges to make. Yet because of the way our social and legal system works, there is a need for every case to be resolved so a decision must still be reached. Justice Truepenny formally encouraged the executive to provide clemency to the men, but he still decided to follow the law. Similarly, Justice Keen did state that he believed clemency should be granted, but that is not his role as judge to decide what is right and what is wrong. He stated therefore that the question of morality must be removed from the judgement and the facts of the case be looked at only. On the other hand, Justice Handy justified his ruling by saying that it was clear the executive would not grant clemency, and therefore it becomes the responsibility of the court. Justice Tatting recused from deciding. As a direct result of that action, the court’s decision is tied and therefore the original conviction upheld. 
From the many different viewpoints of the judges, the issue is clearly complex and with any ruling like the above, the final decision will vary depending on the individual views and beliefs of each of the judges. This scenario highlights how even if a judge did refuse to make a decision on a case as a result of it being too hard, dubious, or dangerous, a final judgement must still be made. Without consequences for actions being decided, the public faith in the legal system would diffuse. Despite Justice Tattings action, there were still direct ramifications. In his lack of action, he decided the case. Resolution must be provided in order to maintain peace and preserve the justice system. It is clear within this case that there is never one clearly correct judgement as the law is complex and subjective dependent on individual case study. Nonetheless, a decision still had to be made and a final outcome decided as this is the point of the legal system. 

The impact of Judicial opinions: 

When a decision is made in court, there are implications that follow. As Justice Blackman said in his 1989 Webster dissent: Judicial opinions have “progeny”, meaning there are knock-on affects to rulings in difficult cases. Literally interpreted, this means that judicial opinions have ‘offspring’. Every time a decision is made in an area of law wherein there are no precedents, these rulings affect future cases. As other cases are judged based on the decisions of said case. Each and every single decision leads to further litigation and further law. This shows how every decision in the court room is of critical importance—every single decision has knock-on ramifications. It is vital for the development of the law and for societal safety that these decisions are made boldly and soundly, even in dubious circumstances. In this sense, the case of R v Human Fertilisation and Embryology Authority, ex parte Blood is unique, as a result of the ruling in it there could never again be a case similar to it. The case of the Spelucian Explorers is dangerous as cannibalism and death are involved. 
This concept is reinforced by the doctrine of stare decisis. The doctrine ensures that decisions of courts are consistent with all prior decisions. Stare decisis is a shorthand version of “stare decisis et non quieta movere”, which translates to: “to stand firmly by those things which have been decided.” This shows how important every individual ruling is, and how important the consistency between these rulings is, too. If a court were to refuse to decide a case on the grounds of it being “hard, dubious, or dangerous”, then what would be the point in having a law enforcement system in place at all?  To refuse to judge on the grounds of complexity would be inconsistent not only with the protocol of the courts but with the precedent that the laws of our country lay out to maintain a wholesome society. 
Further, it is often these difficult cases that  have the biggest impact on the future of the law, as supported by the quote “landmark decisions appear to have the greatest begetting power.” Cases that yield landmark decisions grow from complex roots. This difficulty only adds to the importance of deciding the case efficiently and correctly in order to strengthen the law and fill in any gaps within the field. 
Judges can be wrong; after all, they have the ability to overturn their decisions. However, that doesn’t change the fact they have a moral and legal obligation to reach a decision in the first place. They simply couldn’t refuse on the grounds of uncertainty, or complexity, as it goes against not only their job titles and societal positions but moral compass. As mentioned previously, the only time judicial recusal is appropriate is when a conflict of interest can be proved. Could this be considered a flaw in the system? Perhaps it is unreasonable to expect judges to provide a decision even in situations where they themselves are unsure—this could result in a bad judgement being provided. However, in the modern era, statues are constantly being updated and changed by the rulings found in case law. It is far better to make a decision and stay truthful to the lawful system in place than to go against this system and bring it to a halt over a hard, dubious, or dangerous case. Progression and development are vital in order to uphold the law as it is enforced and ensure that the correct judgements are made. 


Overall, it can be seen that Karl Llewellyn’s statement is indeed correct. “The court must decide the dispute that is before it. It cannot refuse because the job is hard, or dubious, or dangerous.” The support for this can be found within the two referenced cases, R v Human Embryology Authority, ex parte Blood, and The Case of the Speluncean Explorers. If recusal became common within our society, the law enforcement system could not be abided by. This vein of subjectivity is incompatible with the system we currently uphold in society, and if judges were to recuses from making judgement in cases, it would contradict their responsibility to society as an enforcer of the law. In order for conflict to be resolved(,) and the parties move forward, judgements must be provided in order to determine the appropriate outcome of the case. If a judge refuses to provide a ruling, as seen in the Speluncean Explorers case, then a final outcome must still be decided. No matter what is ruled, in most cases, the judgements will cause controversy. This can be seen in R v Human Embryology Authority, ex parte Blood. However, this reaction should only work to advise the judges in making their decisions, it should not deter them from deciding an outcome entirely. 

HaigA Bosmajian , Metaphor and Reason in Judicial opinions (Southern Illinois Uni-versity Press 1992)

MHSam Jacobson, Legal Analysis and Communication (AuthorHouseUK 2005)
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Jeremy Lawrence, ‘Diane Blood tells of joy at dead husband’s child’ (The independent, 28 June 1998) accessed 12 January 2018

Masood Ahmed, ‘Judicial Recusal’ (Law Society Gazette , 14 October 2013) accessed 12 January 2018

Pranjal Agarwal, ‘Can the court refuse to hear a case?’ (Quoracom, 22 June 2017) accessed 12 January 2018 

Wikipediaorg, ‘The Case of the Speluncean Explorers’ (Wikipediaorg, 12 January 2018) accessed 12 January 2018

R v Human Fertilisation and Embryology Authority, ex parte Blood 1997 2 All ER 687 (CA)  
‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616.  


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