INTRODUCTION PART I OUTLINE OF THE STRUCTURE OF THE BOOK Justice is not a cloistered For us the contemporary common law

w is defined by t #&ually important is the political situation of the %nited 'ingdom in a world characterised by the globalised flows of capital, commodities
allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men. virtue: she must be

he Human $onvention rights in #nglish law and the reality of #uropean %nion law. Rights Act !!", the presence of #uropean

, information, images and people.

Understand the CL

(he common law needs to be understood against the backdrop (he original )home) of common law was #ngland. (he history of the common law is inseparable +n the colonial period However, to think properly about the common law today we need to appreciate its part in a comple. postcolonial reality. /herever we look, the common law is inseparable from broader historical, political, cultural and economic conte.ts. +n particular, the sense that democracy is in )decline) in the %nited 'ingdom
of the cultural heritage of post colonialism. #mpire. from the patterns of trade and colonial )adventure) that defined the *ritish law com'or !ned w!th "local" #$r!sd!ct!on that ranged from customary law to +slamic law, to %ro&!decommon the 'o$ndat!ons the le(al s)stems o' co$ntr!es as diverse as the %nited ,tates, -alaysia, *angladesh, and $yprus. institutions.
0

opens pressing &uestions about legal and political

Brief overview
st

1 2egal culture

(he a reading of the an understanding of the our commitment to notions of ,uch ideas and practices of normativ
'!rst theme 1 our concern with le(al c$lt$re 1 can be disaggregated

into sub themes:

o o o

c$lt$res o' the %ostcolon!al common law, a!ms o' le(al

ed$cat!on, and

%$ l!c reason and scr$t!n) concern!n( #$d!c!al %ract!ce .

e visibility also our Art!cle * $onvention: a key organising instrument thatinform declares aen(a(ement h$man r!(ht w!th to a 'a!r tr!al . of the #uropean

3nd 4 politic of 5udiciary

(he /e will discuss the transformation of the 5udicial role since the
law. second theme, focused on the %ol!t!cs o' the #$d!c!ar) and the le(!t!mac) o' the common +,,- and the so called dialogue etween the co$rts and Parl!ament over human rights. H$man R!(hts Act

Explanation:

Criticism about what is common law definition /e now want to elaborate the first two themes in a little more detail. 6ur narrative attempts to disturb this )scene) of the transmission of legal knowledge to the )sub5ects) of the law. /e argue that law cannot e narrowl) seen as the rules art!c$lated ) a so&ere!(n %ower that )states) the law for its sub5ects. /e also criticise the !dea that law can somehow e "owned" ) a c$lt$re. /e argue that the a$thent!c common law trad!t!on em raced d!''erence and %l$ral!t) and attem%ted, but not alwa)s '$ll) s$ccess'$ll) to accommodate that d!''erence in wholeness. (his against the view that law m$st de'end a homo(ene!t) o' !dent!t) and community 7articulated by the 8erman theorist $arl ,chmitt above all9
o

Reason why not success: S!r .atthew Hale put it in the seventeenth century: )tho) the Br!ta!ns were/ as !s s$%%osed/ the most anc!ent !nha !tants , but )et there were m!n(led w!th them, the Romans, the :icts, the ,a.ons, the ;anes, and . . . the <ormans). /e need to remember law"s com%l!c!t)
!n the %rocess o' Em%!re0

Supporting the CL value

However, we also need to 6ur argument about public reason and 5udicial practice stresses that in a democracy law)s authority rests on o%enness, and on principles of reasoned ad#$d!cat!on o' d!s%$tes by !nde%endent courts sta''ed ) $n !ased #$d(es
hold conce%ts and $nderstand!n(s em edded !n the h!stor) and myths of the common law onto trad!t!on that resonate w!th contem%orar) !deas a o$t e1$al!t) and democrac)0 .

Law !s not the doma!n o' a so&ere!(n and its sub5ects. Rather, as Lord B!n(ham and others have argued, d$e %rocess and the r$le o' law defend the !nde%endence and !nte(r!t) o' the law: central &al$e
s !n a democrat!c c$lt$re0

HRA impact Judges= deference

:resent constitutional arrangements in the %nited 'ingdom show a de(ree o' stra!n> whilst fundamental constitutional structures remain largely unchanged, but the conventional concept of the de'erence o' an $nelected #$d!c!ar) to a so&ere!(n Parl!ament !s e!n( slowl) rede'!ned ) the !m%act o' the HRA +,,(here are a host of &uestions. +n what ways are #$d(es en(a(ed !n a "d!alo($e" w!th Parl!ament> a dialogue that also re&uires us to e.amine the relat!onsh!% etween the domest!c co$rts and 2ECtHR3 in ,trasbourg and the state o' Br!t!sh %ol!t!cs
. -oreover, how are 5udges appointed? How representative are they of the democracy they serve?

Article @ and common law 6ur approach to Article @ is focused on principles of 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 o (he )language) of human rights is a fairly recent invention. /hilst remaining cogniAant %tilising Article @ also means that we can e.amine the e.tent to which the common law measures up to
o%en #$st!ce. !nte(r!t), %art!c!%at!on and f human rights. of the immanent principles of$s the law, but we will that looking procedures through h$man r!(hts allows acommon cr!t!cal %ers%ect!&e to argue the common lawat . common law !nternat!onal standards o' d$e %rocess0

Brd 4 $riminal and $ivil :rocedure

6ur /e will be particularly concerned with how we can, 6ur third theme picks up and develops concerns at the level of the criminal and civil 5ustice systems. + High minded ideals of integrity and participation come up Cr!m!nal "#$st!ce" appears almost as a ad #o5e
th!rd theme 4 confronts !n !ma(!nat!on !' not real!t), reta!n a sense o' the !nte(r!t) o' %roced$res beyond the messy compromises of their operation. t is somewhat chaotic. a(a!nst a real!t) o' d)s'$nct!onal a(enc!es and the %r!son !nd$str!al com%le40 6ur study of civil 5ustice works its way through similar themes.

the material real!t!es o' c!&!l and cr!m!nal %roced$re .

when we realise that the system is a comple. and e.pensive means of )constituting), marginalising and condemning a )criminal population).

However, we will attempt to show that a somewhat more principled idea of 5ustice can be used to think about the way in which the civil system operates. *ut a real!t) o' d!scr!m!nat!on and com%rom!se means a #$st s)stem 'or the resol$t!on o' c!&!l d!s%$tes
is still some way from being achieved.

THE POSTCOLONIAL CO..ON LA6

Common and English nation? From the perspective of *ritish history, (he common law was

s%ea5!n( %eo%le".

the common law was central to the %rod$ct!on o' a "nat!on" and an "En(l!sh

'$ndamental to the central!sat!on o' ro$(ht to(ether 'orms o'

%ower and !nd!rect it was mobilised in subtle and not d!rect ,and r$le o&er colon!sed terr!tor!es . so subtle networks that

Law- Protection or Equality?

/hilst the story of nation building and #mpire has been the dominant account of the common law, (o what e.tent can the common law help build plural communities that are committed to democracy and the rule of law? (his &uestion re&uires another historical perspective on the common law.
%ro lemat!c0 but contem%orar) $nderstand!n(s o' th!s s$ #ect are concerned w!th a d!''erent

# +n these cases we can see a struggle taking place over the / +s the proper task of the common law the 6r must the common law realise the e.emplification of the
.amines two "sla&e" cases from the seventeen and eighteen hundreds. o' the law> e are also concerned with the proper language in which to talk about the law.

%ro%er role

e.tends to the right of a master to own h!s sla&es7

%rotect!on o' %ro%ert) r!(hts, even if this

s%!r!t o' l! ert), e&uality and dignity 1 and affirm that a human being is not a chattel?

$ommon law value has no basis

(here are a number of compromises between these positions 1 and it could no doubt be seen as traditional (he slave cases show 2aw)s open te.ture) has allowed 7at least to some e.tent

En(l!sh d$%l!c!t) a''!rm that there can e no sla&er) !n ma!nland Br!ta!n, whilst en5oying the econom!c %rod$cts o'to s)stems o' sla&e holding safely located on the colon!al %er!%her).

how d!''erent law c!rc$late, how different political claims about the values of law oppose one another. narrat!&es a o$t the

9 le(al challen(es to be mounted on even the most seemingly settled of cultural institutions> e&en !' the co$rts %re'er not to de&elo% the law !n a %ro(ress!&e manner0

(his connects with ,tate of emergency happen when there is no law /e 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.
state o' emer(enc)

o$r en(a(ements w!th the colon!al and the

/hen common law has no basis then we have to consider the R62?

$an law ever protect itself? (hat is a +t is inseparably connected with what we call the realisation of plural communities, and a concern that takes us back to the rule of law.
1$est!on o' law and %ol!t!cs0

ule of law ! provide a "space# for Plurality and Equality

-eaning of R62 (he rule of law is thus Cthe establishmentD of a by the ;r Rowan /illiams. ;r /illiams is suggesting that within a polity composed of A ( (he (his corresponds with
notions of plurality and e&uality:

is important as it provides a focus for our development of

s%ace access! e&er)one is possible to a''!rm and de'end a commitment to h$man d!(n!t) as such, Cwe have to le be to aware that allin which it communitiesD have to come to terms with the act$al!t) o' h$man d!&ers!t) 1 and that the only way of doing this is to acknowledge the category of )human dignity as such) 1 a non8ne(ot!a le ass$m%t!on that each a(ent . . . could be e.pected to have a voice !n the sha%!n( o' some common %ro#ect for the well1being and order of a human group.

"%l$ral comm$n!t!es" 7i.e. different beliefs, values and mores9 the rule of law creates a "s%ace" where a common &al$e 7)dignity as such)9 is both "a''!rm9ed: and de'end9ed:). '$ndamental &al$e a nation state9 is D!(n!t) . that underlies political community 7or, crudely put, a load of people living together in he basic understanding corresponds with the idea of the moral worth of the human being. moral worth o' the h$man

e!n( means that all human beings are e1$al !n d!(n!t).

e1$al!t) the e1$al!t) law, and, will suggest, other 7controversial9 values that are both human rights and claims to s$ e'ore stant!&e . as we

E$pace# of

(he idea that the rule of law is a )space) is a (he rule of law is a space because !t !s more than s!m%l) le(al r$les0
d!(n!t)0 meta%hor that we would interpret in the light of our $nderstand!n( o'

%L?- Court

(o claim that the rule of law is a space is to refer 7implicitly9 to (he legal institutions that we are primarily concerned with in this book are (hus, as we will argue, co$rts re1$!re moral a$thor!t) to deal #$stl) w!th !nd!&!d$als.
!nst!t$t!ons0 le(al co$rts.

However, the <otion of legal speech to the principles of integrity, participation and open 5ustice that define fair trial rights.
o

not!on ta5es %lace !n le(al !nst!t$t!ons: le(al s%eech 4 o' s%ace 7in an institutional sense9 also re'ers to what

*ut, there is still more to be said about the )space) of the rule of law.

&ignity

<ote that ;r /illiams suggests that dignity relates to )a non8 ne(ot!a le ass$m%t!on that each agent . . . could be e.pected to have a voice in the shaping of some common pro5ect for the well1being and order of a human group). i /e will argue that this concern can be linked with the !dea o' the 'a!r tr!al, and with an understanding of democrac)0
an "a(ent" is a person 7an individual moral personhood9, then to acknowledge the )voice) o&er of the person is tof allow %eo%le the o%%ort$n!t!es or with str$ct$res that ena le them to ta5e some control the dec!s!ons that a''ect the!r "well e!n(".

;$onclusion

ROL8 s%ace to de'end h$man d!(n!t) 8 co$rt8 le(al s%eech8 'a!r tr!al8 democrac)

'rgument: that mean "insert own (uman

ight value# into neo-colonism and ignore theirs

(he 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 FmasterF values, but aren)t these ideas ultimately +n the name of a FcriticalF account of the common law, you have in fact merely o A relat!&!st %os!t!on or ar($ment !s one accord!n( to wh!ch the tr$th !s not alwa)s the same/ $t &ar!es accord!n( to c!rc$mstances0
e cr!t!cal? too l!n5ed to colon!al!sm and western he(emon) to re%rod$ced a neo8colon!al become acco$nt that ignores, silences or marginalises the ideas and values of those non western others who have s$ #ects o' h$man r!(hts !n the same wa) that the) were s$ #ects o' colon!al law"0

C-': )ust *e in proper democratic sense- authority+s commitment to provide reasons for its decisions,

6ur defence 7in outline only9 would be to acknowledge the force of these arguments. 8iven time, we would hope to produce a defence of d!(n!t) and sol!dar!t) that 1 at both a pragmatic and more principled levels 1 articulates the r$le o' law as a "s%ace" where 8 !n a "%ro%erl)" democrat!c sense 1 the terms of our common life could be worked out.
o

(hus, in the following section our analysis of public reason

is not an ar($ment that %$ l!c reason o' law has to necessar!l) de'end an) s$ stant!&e &al$es 7i.e. e&uality of opportunity9.

/e stress that (his, in the terms of ;r /illiams) definition of the rule of law, is perhaps the most minimal element in de'!n!n( the "s%ace" o' the r$le o' law.
ment to %ro&!de reasons 'or !ts dec!s!ons0 %$ l!c reason !s

est $nderstood as a$thor!t)"s comm!t8

PUBLIC REASON< =UDICIAL PRACTICES/ LE>ITI.AC? AND DE.OCRAC? Pu*lic reason(he doctrines of precedent and techni&ues of statutory interpretation have to be understood as 5udicial practices. (o describe %recedent and stat$tor) !nter%retat!on as practices draws attention to the way in which #$d(es !nter%ret the law and act on the as!s o' those !nter%retat!ons.
ad-udication *y precedent and $.

:ractices take shape within a culture that determines how they are composed. Judicial practices link to structures of ad5udication. Ad#$d!cat!on/ as we w!ll ar($e/ !s a %art!c$lar 'orm o' %$ l!c reason At this stage we 5ust want to outline the basic terms of our argument.
.

'd-udication require neutral -udge#s reasoning accessi*le and participation of the parties

(he American 5urist 2on 2. Fuller has most famously argued that )it confers on the a''ected %art) a %ec$l!ar 'orm o' %art!c!%at!on in the decision, that of %resett!n( %roo's and reasoned ar($ments for a dec!s!on !n h!s 'a&or".
ad#$d!cat!on re1$!res certa!n str$ct$ral 'eat$res:

: +n other words, (his is another way of thinking about what defines the

articipation through reasoned loses mean!n( ar !ter o' the d!s%$te !s !naccess! le to reason because argument he is insane, has!ts been bribed, !' or the is hopelessly pre5udiced).

ad#$d!cat!on has !ts !nherent structures, which re&uire a ne$tral #$d(e and the %art!c!%at!on o' the %art!es to the dispute.

l!m!ts o' ad#$d!cat!on: what makes ad5udication principled is the fact that it concerns reasoned ar($ment0

Pu*lic
0rial

easoning-(uman

ight

/air

1eutral -udges give reasoning *y 2P3 *e challenged3 criticised3 accounta*le3 transparentdemocratic

/hilst Fuller is not referring to Article @, (his e.tends *ut this is to 5ump ahead with our argument. For the moment
tr!al r!(hts0 $t h!s ar($ment !s ent!rel) com%at! le w!th o$r $nderstand!n( o' 'a!r relates to ad5udication and public reason.

e)ond the %roh! !t!on !as and e1$al!t) o' arms principle which itself stresses that the law is about reason9 to the very idea that o' a #$d(ement needs to e %$ 7a l!call) #$st!'!ed.

we want to stress that the %ro%er role o' the #$d(e

(he 5udicial practice of precedent is an e.ercise in public reason to the e.tent that (hese are democrat!c %ract!ces to the e.tent that these reasoned 5udgments are not e4erc!ses o' na5ed %ower> rather, %ower #$st!'!ed thro$(h reason0
#$d(es m$st (!&e reasoned #$d(ments that show how the) ha&e reached the!r concl$s!ons, and how these concl$s!ons are #$st!'!ed0

(hey can, within the institutional terms of the law, *ut, perhaps most importantly,
e challen(ed and cr!t!c!sed. %ro&!de acco$nta le and trans%arent (ro$nds for the e.ercise of 5udicial power.

the)

New Sect!on<

HRA 6ur approach will (his raises 2ord ,teyn, );emocracy, (he rule of 2aw and the Role of Judges),
@ Co$rt and Parl!ament

allow $s to d!sc$ss #$d!c!al ma5!n( and to $nderstand !ts contem%orar) d)nam!c, and the central!t) o' the H$man R!(hts Actlaw 7HRA9 !!" to these concerns.

'$ndamental 1$est!ons a o$t Br!t!sh democrac)0

2ord ,teyn posits two "strands" to the )democratic ideal). (he first relates to the (he second is that )the
od), acco$nta le to the %eo%le. all and res%ect 'or h$man r!(hts and '$ndamental 'reedoms must be guaranteed). not!on that Parl!ament !s an elected as!c &al$es o' l! ert) and #$st!ce 'or

institutional /here thereintegrity). is conflict between these values, an "!m%art!al and !nde%endent #$d!c!ar)" m$st '!nd the

alance )in accordance with principles of

:arliament ,upremacy A central principle of the *ritish constitution is the (hat :arliament should be able to make or unmake any law that it so chooses +t is thus entirely proper 7so the argument goes9 that in a democracy, the legislature should be sovereign and the e.ecutive)s domination of the legislature is 5ustified by the fact that the ma5ority of people have voted for it and its legislative programme. (he sovereignty of :arliament thus rests on a ma5oritarian thesis about its )popular) legitimacy. However, political party with a large ma5ority can
doctr!ne o' the so&ere!(nt) o' Parl!ament. !s #$st!'!ed ) the cla!m that !t !s elected ) "the %eo%le"0 thro$(h !ts %ol!c!es $nh!ndered ) chec5s or

e4%lo!t the . so&ere!(nt) o' Parl!ament to %$sh alances on !ts %ower

(he political accountability of the

e4ec$t!&e to Parl!ament a%%ears too remote to make much of a difference to the activities in which government engages.

;emocratic ;ialogue

$ommentators on relationships between the Argument by Goung: However, as Goung has commented, it can be +ndeed, some have re5ected the idea more or less out of hand.
o' a democrat!c d!alo($e. this dialogue is meant to operate.

co$rts and Parl!ament ha&e !ncreas!n(l) made $se o' the !dea

d!''!c$lt to determ!ne %rec!sel) how

(o credit the criticisms, it

!s d!''!c$lt '!nd hard e&!dence o' Parl!ament somehow wor5!n( alon(s!de the #$d!c!ar) to create a human rightsto culture, if, as Goung notes, ".Ps re(ard the dec!s!ons o' the #$d!c!ar) as '!nal determ!nat!ons o' the content o' h$man r!(hts, causing some to re(ret the %resence o' the HRA and its conse&uent restriction on democratic decision1making).

;ialogue still useful However, the idea of dialogue should not be abandoned too &uickly, and we will make use of it to e.amine ways of thinking about
#$d!c!al law ma5!n(, and the %ro lemat!c d!st!nct!on etween law and %ol!t!cs0

&evelop (uman

ight

/e will also /e will see this relationship as a work in progress. +t is based on the )mirror principle) articulates the
$se the !dea o' d!alo($e to e4am!ne E$ro%ean Co$rt o' H$man R!(hts in Stras o$r( and the domest!c co$rts. the relat!onsh!% '$ndamental relat!onsh!% etween !nternat!onal co$rt/ res%ons! le 'or the coherent de&elo%ment o' h$man r!(hts %r!nc!%les , andan the elaboration of human rights principles in common law ) the domest!c co$rts0

etween the

/hilst domestic courts have to follow ,trasbourg)s lead, +ndeed, we will see

but outline. the development of human rights law has to be seen as a creative partnership within the terms that we will

h$man r!(hts as an !m%ortant !nter&ent!on !nto Br!t!sh %ol!t!cs, and one that might make for a more %r!nc!%led %$ l!c l!'e0

I.A>ININ> CIAIL AND CRI.INAL =USTICE

(o imagine a system of 5ustice is to imagine a process which is 2aws mean nothing if their application goes unconsidered. 6ur chapters on imagining civil and criminal 5ustice ask some critical &uestions about
%roced$rall) and s$ stant!&el). 'a!r o%erate0

oth

how these areas o' %roced$re

Civil 2ustice

+n our consideration of civil 5ustice, we use the work of John Rawls to demonstrate why civil 5ustice is important. (his also allows us to (o the cla!ms made to the ( "wh!((!sh"1 of, relating to, or characteriAed by a view which holds that history follows a path of inevitable progression and improvement and which #$d(es the %ast !n l!(ht o' the %resent
of civil procedure which tend to merel) s$mmar!se the deta!led mo&e 'rom trad!t!onal acco$nts od!es o' awa) r$les0 this end we will critically describe the problematic way in which civil 5ustice has attempted to deal with three concerns:

allocat!on o' med!cal reso$rces>

land by a minority group

o%erat!on o' le(al a!d0

raditional te.t book is accounts tend present the law and its processes in a )whiggish) fashion where the history of an institution a story of its to gradual improvement.

(hus, the $ontemporary civil 5ustice can then be triumphantly presented as the +n our consideration of 2ord /oolf)s reforms, we want to show how many problems remain.
;ickens) novel Blea4 (ouse. !n#$st!ce o' c!&!l law in the "HHs is demonstrated by reference to $harles '$t$re. real!sat!on o' a rat!onal 'orm o' c!&!l %roced$re and the ach!e&ement o' a

etter

Criminal 2ustice

/hilst the criminal 5ustice process is also characterised by intractable problems, For a start, state punishment impacts more Furthermore, the /e
but it is also worth pointing that the !ss$es ra!sed !n th!s area are 1$!te d!''erent 'rom the %ro lems we descr! e !n c!&!l #$st!ceout .

remedies available in a civil trial.

ser!o$sl) $%on an !nd!&!d$al"s l! ert) than the

com%et!n( a!ms and at %la) !n the cr!m!nal #$st!ce s)stem tend to $nderm!ne the cons!stent '$nct!on!n( of &al$es the system. want to raise some &uestions about the legitimacy and integrity of criminal 5ustice processes.

:olice=s stop1 disproportionate

/e /hilst t

begin with a study of police powers to stop and search. $t the o%erat!on

his practice can be #$st!'!ed as necessar) to e''ect!&e %ol!c!n(, o' sto% and search %owers !m%acts $%on m!nor!t!es in a d!s%ro%ort!onate way.

,cientific evidence

/e (his form of evidence is meant to allow the court to find out the truth in any given case. +n the words of Jerome Frank, science serves as something of )a /e
then turn our attention to the way in which the criminal 5ustice system increasingly rel!es on sc!ent!'!c e&!dence0 %roced$ral o%!ate" 0 will show that scientific evidence is far more problematic than most would want to believe.

:rison overcrowd Another issue: :rison overcrowd E (his is driven, in part, by the e.ecutive=s commitment to an (o pick up on themes developed earlier on in the book, we feel that this is another area in which the 5udges, rather than :arliament, have stood up for the p (he e.cessive use of the prison comes at a time when the population of incarcerated :risons are packed to such a degree that (he public, fuelled by the press, may imagine a Conclusion /e are often told that problems and abuses within civil and (his is a laAy e.cuse to forget those who suffer at the hands of the system. +t is a failure of imaginationI ,o as not to overburden our e.plication of the themes of (he :olitics of t
- prisoner suffer

xecutive over sentencing powers is not new, m the last decade it has assumed a particularly sharp! form

prison policy which appears to have popular support

expansionist

rinciples of individual liberty

country.

people is at its highest in this

serving their sentences

overcrowding has a severe detrimental impact upon the conditions prisoners must endure when

prisons.

room with a view, a satellite dish and a few cuddly toys, this is far from the reality of "ritain!s

criminal #ustice are inevitable

he Common Law, we will turn to elaborate our concerns with fair trials, the rule of law and due process in Chapter $