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Judges as wizards—the making of legal magic

12 September 2019 / Mark Pawlowski
Issue: 7855 / Categories: Features , Procedure & practice
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Mark Pawlowski questions the usefulness of legal fictions in English law

A recurring concern among both judges and legal practitioners is the fear of uncertainty in our law. As Mr Justice Harman said, in Campbell Discount v Bridge [1961] 1 QB 445, ‘the process of robust over-simplification may lead, if followed far enough, to palm-tree justice’. The days of the portable palm tree are not yet with us, but there is a growing tendency among the judiciary to latch on to a variety of legal abstractions as a means of disguising the inherently subjective nature of their decisions.

One technique for injecting objectivity into an otherwise highly subjective conclusion is to use a fictional legal character as an objective yardstick. The ‘reasonable landlord’, for example, often appears in cases where a court has to consider whether a landlord has unreasonably withheld consent to a proposed assignment of the lease or a subletting. In Ashworth Frazer v Gloucester City Council [2001] 1 WLR 2180, Lord Rodger states that the correct approach is

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NEWS
The threat of section 21 ‘no fault’ eviction was banished this week, after the Renters’ Rights Act 2025 passed into law
The landmark Supreme Court’s decision in Johnson v FirstRand Bank Ltd—along with Rukhadze v Recovery Partners—redefine fiduciary duties in commercial fraud. Writing in NLJ this week, Mary Young of Kingsley Napley analyses the implications of the rulings
Barristers Ben Keith of 5 St Andrew’s Hill and Rhys Davies of Temple Garden Chambers use the arrest of Simon Leviev—the so-called Tinder Swindler—to explore the realities of Interpol red notices, in this week's NLJ
Mazur v Charles Russell Speechlys [2025] has upended assumptions about who may conduct litigation, warn Kevin Latham and Fraser Barnstaple of Kings Chambers in this week's NLJ. But is it as catastrophic as first feared?
Lord Sales has been appointed to become the Deputy President of the Supreme Court after Lord Hodge retires at the end of the year
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