Metaphor in Judicial Decisions

Doctrine of Penumbra:

The doctrine of penumbra, also known as the "penumbra doctrine," is a concept in constitutional law that refers to the implied rights or protections that are not explicitly stated in the text of the Constitution but are inferred from its language, structure, or history. The term "penumbra" itself refers to a partially shaded area, and in this context, it signifies the gray area or the implicit rights that emanate from the Constitution's explicit provisions.

 

The doctrine of penumbra was famously introduced by the United States Supreme Court in the landmark case of Griswold v. Connecticut in 1965. In that case, the Court recognized a right to privacy, even though it is not expressly mentioned in the Constitution. The Court held that the explicit guarantees in the Bill of Rights create "penumbras" of protected zones that encompass certain implied rights, such as privacy, that are fundamental to the liberties protected by the Constitution.

 

Incoming Tide Metaphor:

The metaphor of the "incoming tide" was first used by Lord Denning, a prominent English judge, in the case of Macarthys Ltd v. Smith (1979). Lord Denning used the metaphor to describe the effect of EU law on the UK legal system. He stated that "the Treaty of Rome is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back." The metaphor suggests that EU law has a pervasive and overriding influence on domestic law.

 

In the context of the UK's membership in the EU, the doctrine of the incoming tide reflects the principle of supremacy of EU law over conflicting domestic law. According to this doctrine, when there is a conflict between EU law and domestic law, EU law takes precedence and must be given effect by UK courts.

 

However, it is important to note that the doctrine of the incoming tide has become somewhat obsolete since the UK's withdrawal from the EU, commonly known as Brexit, in January 2020. As a result of Brexit, the UK is no longer subject to EU law and has regained full legislative sovereignty. Therefore, the metaphor may be less relevant in current UK constitutional law discussions.

 

The Doctrine of Wall of Separation:

The phrase "wall of separation between church and state" is often used to describe the principle of separation of church and state in the United States. It is derived from a metaphor used by Thomas Jefferson, one of the Founding Fathers and the principal author of the Declaration of Independence.

 

In a letter to the Danbury Baptist Association in 1802, Jefferson wrote, "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and state." Jefferson's intention was to convey the idea that the First Amendment to the United States Constitution, which includes the religion clauses, creates a separation between religious institutions and government.

 

The First Amendment's religion clauses state: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Establishment Clause prohibits the government from establishing an official religion or showing preference for one religion over others. The free exercise clause ensures that individuals have the right to practice their religion without interference from the government.

 

The concept of the wall of separation has been influential in shaping the interpretation of the First Amendment's religion clauses by the Supreme Court of the United States. The Court has used this principle to strike a balance between protecting religious freedom and preventing government endorsement or excessive entanglement with religion.

 

It's important to note that the interpretation and application of the separation of church and state principle have been the subject of ongoing debate and legal cases throughout American history. The exact boundaries and implications of this principle continue to be explored and defined by the courts.

Pole-Star:

In the constitutional law of Bangladesh, the pole star metaphor is associated with the doctrine of basic structure. The basic structure doctrine holds that certain fundamental features and principles of the constitution cannot be amended or altered by the legislature or any other authority. These basic features serve as a guiding principle, akin to a pole star, that provides direction and stability to the constitutional framework.

 

The concept of the pole star metaphor was introduced by the Supreme Court of Bangladesh in the case of Anwar Hossain Chowdhury v. Bangladesh (1989). In this case, the court upheld the basic structure doctrine and stated that the Constitution of Bangladesh has certain inviolable core principles that are essential to its identity and cannot be amended. The court used the pole star metaphor to emphasize the enduring and guiding nature of these fundamental principles.

 

The pole star metaphor signifies that just as the pole star remains constant and provides navigational guidance, the basic structure of the constitution remains unalterable and provides a framework for governance. It highlights the idea that while constitutional amendments are permissible, they must not violate or undermine the fundamental principles that form the foundation of the constitutional order.