October 25, 2006

Judicial Academy

Judicial Independence is both popular and unpopular today. Home Secretaries from Michael Howard to John Reid have been keen within Britain both to state that they believe in judicial independence and that they object to decisions made by particular judges in particular cases to implement the law. The Prime Minister himself has been particularly angry with the way that judges have implemented the terrorist laws, saying in the House of Commons that the Law Lords have failed to understand that the rules have changed, before indeed changing those rules.

Professor Sir Neil MacCormick yesterday dealt with these issues in his British Academy lecture where he attempted to defend the principle of judicial independence as part of a doctrine of the separation of powers. Professor MacCormick's defence broke down to two principle ideas: the first being that a magistrate, in this case in Parliament, should not make law that he himself was not bound by and that the only way to bind a magistrate like a citizen by the law he made was to remove the judgment of how that law applied from his power. His second principle was that the judgment of how a law applied was a different kind of judgment to the judgment of whether a new law was needed- judges, MacCormick argued, and politicians use different kinds of reason to meet different needs in performing their functions and consequently should be different people.

Its this second principle that seems to me to be most interesting. Its a principle that has reappeared through history in defences of judicial power- from the 17th Century jurists like Sir Edward Coke to now. The point is that a new law is made in recognition of all the old laws- so that Parliament sees an abuse in the system and goes to correct it. Now a judge, unlike Parliament, isn't as mindful of the abuse, but is mindful of the way that the law fits into the old laws so consequently he should, if the law was drafted rightly, implement it in the way that Parliament desired- ie that law is part of a conversation and whereas Parliament is caught up in the response it makes to a situation, a judge can see beyond that particular moment to the way that that response changes and does not change the whole structure of legality within a country.

Statute law in this instance is treated as a series of speechacts, whose context is an ongoing conversation with other Parliamentary acts and judgments, which only a judge is able to understand through their longterm view of the law. Its definitely a view worth pondering and is a problem to which we shall return.


edmund said...

do think ( unless there was a part in the lecture not mentioend) this missed a major point-which is the increasing tendency of judges in the anglo-saxon world (which in law includes Isreal) and even beyond to do the job of legislative statutue making for the legislautre (often enocouraged by them eg Candada)which then means the whole idea of indpence stops bieng a guaratnee of liberal democracy-and becomes a threat to it.

Gracchi said...

The issue there Edmund lies in the way that the statute is interpreted- the gay marriage debate in the US for example depends on the equal protection clause of the constitution. What is interesting is that those contentious examples are not the only ones where law is extended- much commercial law for example rests upon statutes similarly extended by Judges. The point is that at the heart of a statutes lies a principle and the judges interpret the statute along the lines of that principle when they come to a new case- so equal protection originally to protect Blacks can be extended to say that anybody can be equally protected. The leglislature can then change the statute if it so wishes (this isn't possible in a constitutional system and possibly presents us with one of the problems of a constitutional settlement). I have to say though this extension of the principle of the law is a good thing in my view because it makes for more consistency in the law between parties within the state.