Judicial Morality and the Limits of the Law

After four years of escalation through the courts of England and Wales, on 25 June 2021 the Supreme Court upheld individuals’ rights to block public highways as a means of protest. Five months later, nine people were handed down custodial sentences following a peaceful protest, which involved blocking a public highway. The determination of these cases demonstrate the extent of the law’s indeterminacy and offers a paradigmatic example of how the law can represent a statement of individual judicial morality. Employing a slim-lined version of Duncan Kennedy’s Judicial Phenomenology, and with reference to these cases, this paper will demonstrate how an ‘environmentally activist’ judge could have refused a significant number of injunction applications and decided the law, and the fate of the protestors, very differently. This article proposes that, contrary to Hart’s claims that indeterminacy is solely a matter of the ‘open texture’ of language, there are many sources of indeterminacy which can make even seemingly ‘easy cases’ ambiguous.