“The discussing further in the coming paragraphs. In

“The court must decide the dispute that
is before it. It cannot refuse because the job is hard, or dubious, or
dangerous.” (Karl Llewellyn)

 

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

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The aim
of this essay is, to evaluate the statement “The court must decide the dispute
that is before it. It cannot refuse because the job is hard, or dubious, or
dangerous.” (Karl Llewellyn) This statement is one that questions the current
court system as to whether they fulfil their function to judge on cases brought
before it.  I will be using the two
sources given which both concern hard and arduous cases that were complicated
for a court to decide upon. This essay will explore whether the above statement
is true of courts currently.

The structure of the essay will be
discussing the two sources separately, then seeing if there is a relation
between the two sources and finally any other sources outside of the two above
that can be used to evaluate the above statement.

 

R v Human Fertilisation and Embryology
Authority, ex parte Blood 1997 2 All ER 687 (CA)

 

In R v
HFEA1,
The general facts of the case are Mrs. Blood the widow of Mr. Blood wanted
to be inseminated with her husband’s sperm , “Mr and Mrs Blood has started
trying to conceive in 1994 then in 1995 Mr Blood contracted meningitis and
later died in hospital because of it. While in hospital his sperm was collected
without his consent written or verbal, while he was in a coma due to
meningitis, the sperm was collected and then stored by the Infertility Research
Trust. The Human Fertilisation and Embryology Authority said that the storage
and use of the sperm were unlawful as the husband had not given written consent
to these as required under the Human Fertilisation and Embryology Act 1990. The
authority also refused to permit Mrs Blood to take the sperm to another country
to be treated there (Belgium). She challenged these rulings in the High court.”2
Who rejected her case but left it open to appeal, she then appealed to the
Court of Appeal which I will be discussing further in the coming paragraphs.

 

In R v
HFEA3,
The final outcome of the whole
case is that Mrs. Blood won an appeal at the Court of Appeal to use his
sperm in another country (EU member state), however the court does not directly
empower Mrs. Blood to use her deceased husband sperm in another EU country in
this case Belgium, they leave it up to the authority to decide whether to allow
the export or not. It is “By virtue of arts 59 and 60 of the EC Treaty, Mrs
Blood, had a directly enforceable right to receive medical treatment in another
member state, and the authority’s (HFEA) refusal to authorise the export of her
husband’s sperm infringed that right since it made the fertilisation treatment
she sought impossible.”4
This quote shows the two acts 59 and 60 of the European Communities treaty that
Mrs. Blood has the right to receive treatment in another EU member state.

        

With reference to the quote on which we
are discussing the case “the court must decide the dispute that is before it.

It cannot refuse because the job is hard, or dubious, or dangerous.” (Karl
Llewellyn). The final paragraph of the decision in R v HFEA5, is very
interesting when discussing the quote as it can be seen to be somewhat contrary
to the statement made by Karl Llewellyn this is for the following reasons (1)
although the judge does give a ruling in the case as they always do. It does
not go all the way to answering the appeal that was put before the court by
Mrs. Blood, the courts says “Mrs Blood has the right to be treated in Belgium
with her husband’s sperm unless there a good public policy reasons for not
allowing this to happen.”6 This one
sentence given by the judge gives two graphic illustrations of how although the
court is giving a decision it is not giving a decisions to “the dispute that is
before it.” It is moving the final responsibility of decision to whether Mrs.

Blood has an legally enforceable right to be treated in another country with
her husbands sperm, the court has established that the Mrs. Blood cannot be
refused the ability to be treated in another EU member state due to the
European communities act and the refusal to export by the HFEA would be an
infringement on this right due to the fact that she cannot receive treatment
without exportation. The observation that I have made about this decision in
the case is that the judge has too some extent moved the final decision which
will enable or restrict Mrs. Blood ability to have her deceased husband
children back to the Human Fertilisation and Embryology Authority however with
the caveat that they must “decide whether to allow the export or refuse on
grounds which are acceptable according to community law.” This is of relevance
due to the fact that under Community law it would be hard to refuse as I mentioned
previously this would go against Mrs. Blood rights under the European community
law. Therefore it can be said that although a decision has be given it does not
go to the full extent to “decide the dispute that is before it” it goes to some
extent in that it sets out how the HFEA must conduct there reasoning when choosing
to refuse or allow the exportation of the sperm, it leaves the ultimate
decision up to the HFEA therefore it is not giving a decision on the case that
goes to the full extent of solving the issue, it could be argued that they did
this as the job was morally “hard” and or “dubious” it could also be argued
that this decision could be “dangerous” for their future career prospects and
or their current career as judges of the court as there deaccessioning could be
called into question. It can be argued that they have tactfully moved the final
speculation of the problem onto the HFEA and therefore removed the possible
danger of “deciding the dispute that is before it” onto somebody else as
previously mentioned.

 

The Case of the Speluncean Explorers’
(1949) 62 Harvard Law Review 616.’

The Case presents an interesting issue
for the hypothetical courts to give decision upon, the case itself is
interesting due to its “hard, or dubious, or dangerous” nature, it can be said to
be all three of these things. The general facts of the case is thus, a group of
explorers are trapped within a cave with no way out, with not enough food to
survive until rescue, they end up eating one of them comrades Roger Whetemore,
they decide who by throwing dice. When they are finally rescued the rest of the
company who killed and the ate roger Whetmore are all prosecuted for murder and
in the fictional “commonwealth of Newgarth” a guilty verdict carries a mandatory
sentence to death.7

 

A point of note with reference to Karl
Llewellyn, it can be said that in this case the presented a hard task and they
did decide the dispute that was before it, this is demonstrated by the original
decision by the jury of the court, which was to put those who as the letter of
the law says “Whoever shall willfully take the life of another shall be
punished by death.” This shows how although the decision was hard the
court decided the dispute that was before it to the letter of the law, it
cannot be said that the original jury did not do this. “It seems to me that in dealing with this extraordinary case
the jury and the trial judge followed a course that was not only fair and wise,
but the only course that was open to them under the law.”8
This quote from the case goes to further the point I have made it shows that
the jury had arguably no other option the law as from the case it says was
concrete on the matter, “this
statute permits of no exception applicable to this case” when referring the
quote this shows how the court had no way to lessen the punishment that will
fall onto these men as the law does not permit any other exception applicable
to the case.

 

Although the job was hard, or dubious, or
dangerous arguably all three of these things in this case. The fictional case
of the Spelucean explorers is one that directly follows Karl Llewellyn words to
the letter. Whether this is right, fair, just and or reasonable is another
matter. It goes to enforce that “the law is the law” and that it will be
followed no matter the cost.

 

 

The fictional case then presents five opinions
from five separate judges.

 

The judges’ opinions

Foster J.

 

Tatting J.

Arguably the most pertinent judge to the
question proposed is judgment given or rather not given by Tatting J, he
withdrew his decision from the case as he could  “wholly unable to resolve the doubts that
beset me about the law of this case,” “I declare my withdrawal from the
decision of this case.”9

 

 

1 R v Human Fertilisation
and Embryology Authority, ex parte Blood 1997 2 All ER 687 (CA)

2 Douglas G, ‘R v. Human Fertilisation and Embryology Authority
ex parte Blood, 6 February 1997.’ (1997) 4(2) Eur J Health L 195

3 R v Human Fertilisation and
Embryology Authority, ex parte Blood 1997 2 All ER 687 (CA)

4 Sixthformlaw.info. (2018). Cases
– law and morality. online Available at: https://sixthformlaw.info/02_cases/mod6/cases_law_morality.htm#Human
Fertilisation and Embryology Authority Ex p. Blood, R v 1997 CA Accessed 14
Jan. 2018.

5 R v Human Fertilisation
and Embryology Authority, ex parte Blood 1997 2 All ER 687 (CA)

6 R v Human Fertilisation and
Embryology Authority, ex parte Blood 1997 2 All ER 687 (CA)

 

7 Olbrychtpalmer.net. (2018). OlbrychtPalmer.net
| Summary of Fuller, ‘The Case of the Speluncean Explorers’. online
Available at:
http://olbrychtpalmer.net/2015/02/25/summary-of-the-speluncean-explorers.html
Accessed 14 Jan. 2018.

8 Fuller, L. (1949). The Case of the
Speluncean Explorers. Harvard Law Review, 62(4), p.619.

9 Fuller, L. (1949). The Case of the
Speluncean Explorers. Harvard Law Review, 62(4), p.631.