The Politics of the Common Law

Perspectives, Rights, Processes, Institutions

Adam Gearey, Wayne Morrison, Robert Jago

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135097875
• Edition: 2
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Politics of the Common Law offers a critical introduction to the legal system of England and Wales. Unlike other conventional accounts, this revised and updated second edition presents a coherent argument, organised around the central claim that contemporary postcolonial common law must be understood as an articulation of human rights and open justice.

The book examines the impact of the European Convention and European Union law on the structures and ideologies of the common law and engages with the politics of the rule of law. These themes are read into normative accounts of civil and criminal procedure that stress the importance of due process. The final sections of the book address the reality of civil and criminal procedure in the light of recent civil unrest in the UK and the growing privatisation of public services. The book questions whether it is possible to find a balance between the requirements of economics and the demands of justice.

1

INTRODUCTION PART I

OUTLINE OF THE STRUCTURE OF THE BOOK

Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.¹

For us the contemporary common law is defined by the Human Rights Act 1998, the presence of European Convention² rights in English law and the reality of European Union law.³ Equally important is the political situation of the United Kingdom in a world characterised by the globalised flows of capital, commodities, information, images and people.

The common law needs to be understood against the backdrop of the cultural heritage of post colonialism. The original ‘home’ of common law was England. The history of the common law is inseparable from the patterns of trade and colonial ‘adventure’ that defined the British Empire. In the colonial period common law combined with ‘local’ jurisdiction that ranged from customary law to Islamic law, to provide the foundations for the legal systems of countries as diverse as the United States, Malaysia, Bangladesh, and Cyprus. However, to think properly about the common law today we need to appreciate its part in a complex postcolonial reality. Wherever we look, the common law is inseparable from broader historical, political, cultural and economic contexts. In particular, the sense that democracy is in ‘decline’ in the United Kingdom⁴ opens pressing questions about legal and political institutions.

This introduction provides a brief overview of our argument, followed by a more substantive development of our key themes and introduces major ideas we will take up throughout the book.

Our presentation of the common law is organised around three key themes. The first theme – our concern with legal culture – can be disaggregated into sub themes: a reading of the cultures of the post colonial common law, an understanding of the aims of legal education, and our commitment to notions of public reason and scrutiny concerning judicial practice. Such ideas and practices of normative visibility also inform our engagement with Article 6 of the European Convention: a key organising instrument that declares a human right to a fair trial.

The development of the first theme runs through Chapters 1 to 9. Chapters 3 to 5 are primarily concerned with the postcolonial common law, Chapters 6 to 9 are focused on public reason and judicial practices, and Chapters 12 to 14 deal with Article 6 and the norms, rules and principles of fair trials.

The second theme, developed in Chapters 10 and 11 is focused on the politics of the judiciary and the legitimacy of the common law. We will discuss the transformation of the judicial role since the Human Rights Act 1998 and the so called dialogue between the courts and Parliament over human rights.

Our third theme – articulated in Chapters 15 and 16 – confronts the material realities of civil and criminal procedure. We will be particularly concerned with how we can, in imagination if not reality, retain a sense of the integrity of procedures beyond the messy compromises of their operation.

We now want to elaborate the first two themes in a little more detail. It is apt that we start – in Chapter 3 – in an (ex) colonial location: the law school at the University of Canterbury in New Zealand. Chapter 3 begins by fore fronting the theme of legal education. Our narrative attempts to disturb this ‘scene’ of the transmission of legal knowledge to the ‘subjects’ of the law. We argue that law cannot be narrowly seen as the rules articulated by a sovereign power that ‘states’ the law for its subjects. We also criticise the idea that law can somehow be ‘owned’ by a culture. Against the view that law must defend a homogeneity of identity and community (articulated by the German theorist Carl Schmitt above all), we argue that the authentic common law tradition embraced difference and plurality and attempted, not always fully successfully, to accommodate that difference in wholeness. As Sir Matthew Hale put it in the seventeenth century: ‘tho’ the Britains were, as is supposed, the most ancient inhabitants, yet there were mingled with them, the Romans, the Picts, the Saxons, the Danes, and … the Normans’.⁵ We need to remember law's complicity in the process of Empire. However, we also need to hold onto concepts and understandings embedded in the history and myths of the common law tradition that resonate with contemporary ideas about equality and democracy.

Chapter 6 develops these thoughts. Our argument about public reason and judicial practice stresses that in a democracy law's authority rests on openness, and on principles of reasoned adjudication of disputes by independent courts staffed by unbiased judges. Law is not the domain of a sovereign and its subjects. Rather, as Lord Bingham and others have argued, due process and the rule of law defend the independence and integrity of the law: central values in a democratic culture.

Present constitutional arrangements in the United Kingdom show a degree of strain; whilst fundamental constitutional structures remain largely unchanged, the conventional concept of the deference of an unelected judiciary to a sovereign Parliament is being slowly redefined by the impact of the Human Rights Act of 1998. There are a host of questions. In what ways are judges engaged in a ‘dialogue’ with Parliament; a dialogue that also requires us to examine the relationship between the domestic courts and the European Court of Human Rights (ECtHR) in Strasbourg and the state of British politics. Moreover, how are judges appointed? How representative are they of the democracy they serve?

Our approach to Article 6 is focused on principles of integrity, participation and open justice. Framing this concern as one of human rights needs to be carefully understood; certainly the common law principles that regulated criminal and civil trials were not framed in the language of human rights. The ‘language’ of human rights is a fairly recent invention. Whilst remaining cognizant of the immanent principles of the common law, we will argue that looking at common law procedures through human rights allows us a critical perspective to the common law. Utilising Article 6 also means that we can examine the extent to which the common law measures up to international standards of due process. This is a salutary reminder that the common law cannot be studied in a vacuum.

Our third theme picks up and develops concerns at the level of the criminal and civil justice systems. Whilst Chapters 12 to 14 stress the values that should underlie the criminal process, Chapter 16 shows how, in reality, it is somewhat chaotic. High minded ideals of integrity and participation come up against a reality of dysfunctional agencies and the prison industrial complex. Criminal ‘justice’ appears almost as a bad joke when we realise that the system is a complex and expensive means of ‘constituting’, marginalising and condemning a ‘criminal population’.

Our study of civil justice in Chapter 15 works its way through similar themes. However, we will attempt to show that a somewhat more principled idea of justice can be used to think about the way in which the civil system operates. But a reality of discrimination and compromise means a just system for the resolution of civil disputes is still some way from being achieved.

We want to turn from this overview of the themes and structure of the book to a more detailed discussion of our core ideas.

THE POSTCOLONIAL COMMON LAW

The opening chapters of this book are concerned with presences and absences in what we can term the postcolonial common law.⁶ From the perspective of British history, the common law was central to the production of a ‘nation’ and an ‘English speaking people’. The common law was fundamental to the centralisation of power, and it was mobilised in subtle and not so subtle networks that brought together forms of direct and indirect rule over colonised territories.

Whilst the story of nation building and Empire has been the dominant account of the common law, contemporary understandings of this subject are concerned with a different problematic. To what extent can the common law help build plural communities that are committed to democracy and the rule of law?

This question requires another historical perspective on the common law. This is why Chapter 4 examines two ‘slave’ cases from the seventeen and eighteen hundreds. In these cases we can see a struggle taking place over the proper role of the law; we are also concerned with the proper language in which to talk about the law. Is the proper task of the common law the protection of property rights, even if this extends to the right of a master to own his slaves? Or must the common law realise the exemplification of the spirit of liberty, equality and dignity – and affirm that a human being is not a chattel? There are a number of compromises between these positions – and it could no doubt be seen as traditional English duplicity to affirm that there can be no slavery in mainland Britain, whilst enjoying the economic products of systems of slave holding safely located on the colonial periphery.

The slave cases show how different narratives about the law circulate, how different political claims about the values of law oppose one another. Law's ‘open texture’ has allowed (at least to some extent) legal challenges to be mounted on even the most seemingly settled of cultural institutions; even if the courts prefer not to develop the law in a progressive manner. This connects with our engagements with the colonial and the state of emergency in Chapter 5. We will argue that we can learn a great deal from the act of declaring a state of emergency: indeed, the state of emergency provides an insight into what passes as the normal ‘state’ of the law. Can law ever protect itself? That is a question of law and politics. It is inseparably connected with what we call the realisation of plural communities, and a concern that takes us back to the rule of law.

These themes are explicated in a little more detail in Chapter 2. However, to conclude this section of the introduction, we want to refer to one of the most intriguing contemporary articulations of the rule of law. This is important as it provides a focus for our development of notions of plurality and equality:

The rule of law is thus [the establishment] of a space accessible to everyone in which it is possible to affirm and defend a commitment to human dignity as such, [we have to be aware that all communities] have to come to terms with the actuality of human diversity – and that the only way of doing this is to acknowledge the category of ‘human dignity as such’ – a non-negotiable assumption that each agent … could be expected to have a voice in the shaping of some common project for the well-being and order of a human group.⁷

This is an account of the rule of law by the former Archbishop of Canterbury, Dr Rowan Williams. It is worth thinking about this statement, even though (at least for a lawyer) it is expressed in a rather unfamiliar language. Dr Williams is suggesting that within a polity composed of ‘plural communities’ (i.e. different beliefs, values and mores) the rule of law creates a ‘space’ (we will return to this word in a moment) where a common value (‘dignity as such’) is both ‘affirm[ed] and defend[ed]’. There is, then, a fundamental value that underlies political community (or, crudely put, a load of people living together in a nation state): dignity. Dignity is a difficult concept to define. We will do so in Chapter 2, and again in Chapter 17, but the basic contour of our understanding can be sketched as follows. Dignity corresponds with the idea of the moral worth of the human being. The moral worth of the human being means that all human beings are equal in dignity. This corresponds with equality before the law, and, as we will suggest, other (controversial) values that are both human rights and claims to substantive equality.

The idea that the rule of law is a ‘space’ is a metaphor that we would interpret in the light of our understanding of dignity. The rule of law is a space because it is more than simply legal rules. To claim that the rule of law is a space is to refer (implicitly) to legal institutions. The legal institutions that we are primarily concerned with in this book are courts. Thus, as we will argue, courts require moral authority to deal justly with individuals. However, the notion of space (in an institutional sense) also refers to what takes place in legal institutions: legal speech. Later, in Chapter 2, we will link this notion of legal speech to the principles of integrity, participation and open justice that define fair trial rights. But, there is still more to be said about the ‘space’ of the rule of law.

Note that Dr Williams suggests that dignity relates to ‘a non-negotiable assumption that each agent … could be expected to have a voice in the shaping of some common project for the well-being and order of a human group’. If an ‘agent’ is a person (an individual with moral personhood), then to acknowledge the ‘voice’ of the person is to allow people the opportunities or structures that enable them to take some control over the decisions that affect their ‘well being’. We will argue that this concern can be linked with the idea of the fair trial, and (in Chapter 17) – with an understanding of democracy.

One final point: we are aware of ‘relativist’ arguments. The relativist would seek to criticise our position in the following terms: ‘it's all very well to assert the rule of law, dignity and human rights as fundamental “master” values, but aren't these ideas ultimately too linked to colonialism and western hegemony to be critical? In the name of a “critical” account of th...