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12 September 2019 / Mark Pawlowski
Issue: 7855 / Categories: Features , Procedure & practice
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Judges as wizards—the making of legal magic

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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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