Philosophy rather than judicial precedent may produce the best answers to difficult social policy issues.
Writing in NLJ, barrister Jon Holbrook praises Mostyn J’s ruling in November on the caring arrangements of Katherine, a woman who lacks mental capacity and believes it is still 1996 (Rochdale MBC v KW [2014] EWCOP 45, [2014] All ER (D) 200 (Nov)). The case centred on the meaning of “liberty”, which Mostyn J answered with citations from John Stuart Mill.
Holbrook writes: “Katherine’s case ended up in court because of a recent precedent, decided not by asking the big question of “what is ‘liberty”?’ but by applying a recent legal precedent. In March 2014 a majority of the Supreme Court concluded that liberty meant ‘the state or condition of being free from external constraint’ [in Cheshire West [2014] UKSC 19, [2014] All ER (D) 185 (Mar)].
“Sadly, this approach means that tens, if not hundreds, of thousands of cases similar to Katherine’s are now subjected to routine and unnecessary judicial scrutiny, which will suck resources away from those who need them…Mr Justice Mostyn has found the antidote: put aside the legal precedent and take off the shelf some works of philosophy.”
