The popular perception is that judges make the law, but any first-year law student would quickly point out that this is not so. Judges interpret the laws made by Parliament and refer to past decisions either to support or distinguish their rulings.
Even so, the result can be that judges find themselves unable to work around the strict wording of a piece of legislation, and have to arrive at conclusions that seem unsatisfactory.
Perhaps no clearer example of this exists than this week’s decision of the Supreme Court in the JFS case.
What emerged was a legal anomaly that divided the nine judges by a ratio of five to four; the narrow majority deciding to dismiss JFS’s appeal against an earlier finding of direct racial discrimination in the application of its admissions criteria.
Perhaps more remarkable was the apparently common ground between both the prevailing and dissenting judicial opinions that, to quote Lord Rodger, “something has gone wrong” with the law.
More starkly still, Lady Hale, although dismissing JFS’s appeal, said that a change in the legislation might be thought necessary. As she noted, “Jewish law has enabled the Jewish people and the Jewish religion to survive throughout centuries of discrimination and persecution. The world would be a poorer place if they had not. Perhaps they should be allowed to continue to [apply Jewish law].”
None of us should lose sight of the human drama at the centre of this case, and the passion that all sides clearly felt for Jewish education and identity.
This was not a case about “faith schools, right or wrong”, and those, even from within parts of our own community, that have applauded this decision as a blow to Jewish schools, or faith schools in general, have not done so out of any real affinity for child M.