ARTHUR LEHMAN GOOD HART

LEGAL PROCEDURE AND DEMOCRACY

INTRODUCTION:

I do not think that anyone can question the primacy of the Supreme Court because no
other court has ever had so much power. Great as it is, the House of Lords as a court could be
abolished tomorrow without seriously affecting the British system of government, but if the
Supreme Court were to be abolished, then the whole Constitution would come to an end. The
essential difference is that the Supreme Court can hold federal and state statutes
unconstitutional: The House of Lords has no similar power because there is no British
Constitution. What Parliament says is binding on all judges, and there is nothing more to be
said about it. Judges, however, usually manage to get their own way: The House of Lords has
been able to attain some of the same results which, in the United States, are achieved by the
first 10 Amendments. By a convenient fiction it assumes that Parliament always intends that
its statutes will accord with natural justice; no statute will therefore be construed to be
retroactive or to deprive a person of a fair hearing or to prevent freedom of -speech unless I do
not think that anyone can question the primacy of the Supreme Court because no other court
has ever had so much power. Great as it is, the House of Lords as a court could be abolished
tomorrow without seriously affecting the British system of government, but if the Supreme
Court were to be abolished, then the whole Constitution would come to an end. The essential
difference is that the Supreme Court can hold federal and state statutes unconstitutional: The
House of Lords has no similar power because there is no British Constitution. What Parliament
says is binding on all judges, and there is nothing more to be said about it. Judges, however,
usually manage to get their own way: The House of Lords has been able to attain some of the
same results which, in the United States, are achieved by the first 10 Amendments. By a
convenient fiction it assumes that Parliament always intends that its statutes will accord with
natural justice; no statute will therefore be construed to be retroactive or to deprive a person of
a fair hearing or to prevent freedom of -speech unless Parliament has so provided in the most
specific terms. Only last month the House of Lords in Ridge v. Baldwin (1963) 2 W.L.R. 935,
held that where a statute gives a Police Watch Committee the power to dismiss any constable
whom it thinks is unfit for the discharge of his duties, there is an implied term that he must be
given an opportunity to be heard. Lord Reid said: The principle audi alteram partern goes back
many centuries in our law. . .. In modern times opinions have sometimes been expressed to the

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effect that natural justice is so vague as to be practically meaningless. But I would regard these
as tainted by the perennial fallacy that because something cannot be cut and dried or nicely
weighed or measured therefore it does not exist. A similar view was expressed by one of my
pupils some years ago: in answering an examination question he wrote: In this case you cannot
draw a line anywhere, therefore you must draw a line somewhere.

An Efficient Organ of Government

The Supreme Court is not only more powerful than is the House of Lords: it also seems
to me to be more efficient because it is not absolutely bound by its own precedent decisions.
This does not mean that it is free to disregard them because, as Dean Pound has said, this would
lead to "cadi justice," but it can depart from them if it is clear that they have been based on
some error of fact or of principle. Unfortunately in 1898 the House of Lords in London Street
Tramways Co. v. London County Council (1898) A.C. 375 held that it was absolutely bound
by its own prior judgments and would never reconsider them. This is highly inconvenient
because it means that precedents must be analysed in the greatest detail, as it is not always
crystal clear what the judges in the prior case meant to say. As oral arguments are not given a
time limit in the English courts, such an analysis may go on for a long time. Thus in a case
where counsel had been arguing such a point for two days he said: My Lord, I trust that I am
not trespassing on your patience. His Lordship replied: Mr. Smith, you trespassed on my
patience yesterday. Today you are encroaching on eternity. This absolute doctrine has also been
contrary to the spirit of the common law. Sir Frederick Pollock, one of the greatest of legal
scholars, who disliked all absolutist rules, said in his lectures at Columbia on Our Lady The
Common Law that the strength of the common law lay in its capacity to adjust itself to changing
circumstances, just as a reasonable man will be guided by changing facts. As an illustration of
this, he pointed out that the common law has never recognized an absolute right of freedom of
speech. The golden thread of this procedural law is the concept of the fair trial. In those three
words "the fair trial" we can sum up the outstanding contribution that the common law has
made to civilization. It depends on three things: first, an impartial judge, secondly, an
independent and courageous bar, and thirdly, efficient and rational rules of practice and
evidence. "The Migration of the Common Law," and in every instance-the United States,
Canada, Australia, Ireland, India and Israel, all common law countries, -it was the principles
of procedural law which were recognised as being the essential elements which had crossed
the oceans. The writ of habeas corpus is the supreme example of this, because on it our

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individual liberty is based. It has been said with truth that each single word of that writ is of
more value than a thousand treatises on the subject of freedom.

An Independent Judiciary

The first essential is an impartial, independent judiciary. Here the common law has had
the most extraordinary good fortune. When the courts were first established in the 12th century
the King chose his judges from learned clerics, such as the great Bracton, or from the civil
servants attached to his court. But when the Church forbade the clergy to be judges, deciding
temporal cases, a new source had to be found. It could not be found in the universities because
English law was not being taught there. The Kingherefore in the 14th century began to choose
his judges from the leaders of the bar, and this became a fixed rule a hundred years later. This
is of the utmost importance because, as Professor Plucknett has said in his History of the
Common Law: If the judges had continued to be members of the civil service . . . we should
have had in England (and probably in America too) something like the system prevailing in
several continental countries today. The great thing is that since the 15th century the English
judges have been independent. They are the representatives of the King, but not his servants.
No one can tell them how they should decide a case because they are essentially the servants
of the law. The story has been told that some years ago two judges came to Oxford on assize.
They dined one evening at All Souls College, and after dinner the warden proposed the health
of the Queen. The junior judge, who had only recently been appointed, stood up. The senior
judge pulled his coat and said in a hoarse whisper: Sit down, you fool, you are the Queen. This
independence of the judges is now part of the American tradition, and the most essential part
of it. These judges are independent, but they are never arbitrary. There are three things in the
common law system that prevent this. The first is that the judges sit in open court; there is no
secret evidence and no secret arguments to which they can listen. Each side knows what the
other has said to the judge. The second point of great importance is that the judges give reasons
publicly for their judgments. They are a body of experts explaining to a body of experts why
they have decided as they did. The third point is that the judges act not as a body, but as
individuals. Each one is free to dissent. They are thus each other's severest critics. At the time
of Queen Victoria's Jubilee the English judges decided to send her an address of
congratulations. The first draft began with the phrase "Conscious as we are of our infirmities"
Lord Bowen objected to this as being inaccurate. He said it should read: Conscious as we are
of each other's infirmities. Only once in English history did this common law system break
down,-during the Stuart period in the 17th century. The names of some of those judges, -

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Bloody Jeffreys and the egregious Scroggs, - have remained infamous ever since. The famous
Bill of Rights of 1689 finally established the independence of the judges by providing that they
should hold office not by favour but during good behaviour; it is fitting that the first 10
amendments to the American Constitution have been called the American Bill of Rights. In the
great address which Chief Justice Warren delivered on April 27 at Duke University he
emphasised that our cherished freedoms depend on the Constitution. He concluded in these
words: Surely the Constitution should be as precious to us now as it was then. If lawyers are
not to be the watchmen for the Constitution, on whom are we to rely?

An Independent Bar:

It is, therefore, not only the judges but especially the independent bar which has,
throughout the past 500 years, proved to be the strongest shield for our liberties. It was one of
the most fortunate accidents in history that in the 14th century the Inns of Court were
established in London where barristers became a unified body. Of them Maitland has said:
Those lawyers are worldly men .... They are the great mediators between life and logic, a
reasoning, reasonable element in the English nation. They became a powerful profession and
asserted their independence even against the Crown. It was Sir Edward Coke and John Selden
who led the battle for freedom in the 17th century. William Prynne, a bencher of Lincoln's Inn,
had his ears cropped and was placed in the stocks because lie defied the King; and Fuller, a
bencher of Gray's Inn, was unlawfully put in prison, where lie died, because lie tried to obtain
a writ of habeas corpus for two of his Puritan clients. The same spirit was shown a century later
when Erskine, the greatest advocate of the day, defended Thomas Paine for publishing his
Rights of Man. He was urged by his friends, and even by the Prince of Wales, not to take the
brief. One man, acting alone, may be a splendid example for others, but it is not until the others
can act together as a corporate whole that effect can be given to the ideals for which they stand.
It is for this reason that I am convinced that the American Judicatuire Society is rendering a
great service to the nation in the powerful support it has given to the movement for integrated
bars. The third essential of a fair trial is found in the procedural rules, including the rules of
evidence. Here again there can be no absolute rules because they must depend on the conditions
in each country. I have time for only one illustration which concerns the question whether
evidence illegally obtained should be excluded or not. The English view is that the police can
be adequately controlled without a provision that such evidence must in all circumstances be
excluded. It is enough if the judge is given power to exclude such evidence if he thinks that
justice requires it. The same considerations may not be equally applicable in other countries.

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The Foundation of Democracy

If this idea of the fair trial had been of importance only in the field of law it would still
have been of the greatest value, but in fact it has played a more far-reaching role. It is the
foundation of our democratic system of government. There have been many definitions of
democracy, but I believe that the true interpretation is to say that democracy is a system of
government under which everyone is given a fair chance to be heard. This does not, of course,
include criminal conspiracies, especially conspiracies to overthrow the legal government by
force. This concept of government, which we now accept as axiomatic, is not an easy one to
attain, because it requires a sense of law-abidingness, a sense of fair play,-on the part of the
people. Sir Frederick Pollock emphasised that democratic Parliamentary government cannot
be established until there is a settled, strong and regular system of order and justice. Law is to
political institutions as the bones to the body. It is the framework from which institutions take
their form. If you weaken this framework then the whole institution may collapse. That is why
in England the King's courts were established a hundred years before Parliament could come
into being. One of the tragedies of the present age is that we have assumed that democracies
can be established in countries where there is no law-sense. The result in these countries has
been anarchy or tyranny. For more than 500 years the common law has taught by the fairness
of its judges, the independence of its bar, and the courage of its juries, that we must listen to
the other side-audi alteram parletr. It is here that we differ from all totalitarian states, for our
government is based on consent and not on force. In a famous essay entitled English Law as a
Branch of Politics Sir Frederick Pollock once said: We and our kinsfolk in America love to
think ourselves a law-abiding people ... This, be it marked, is a very different thing from the
habit of submission to persons in authority; our respect is for the law, not for the persons. This
law-abidingness is not a vague idea: it simply means that we realize that we must abide by the
rules of the game. Of course from time to time we may get upset when a decision goes against
us, and we call out "Kill the umpire," but if we really ment that then there would not be any
game. This is the lesson our law has taught us. We recognize that we are bound by a decision
even if we do not like it, not because it may be supported by force, but because we know that
if the decision had gone the other way that is what we would have expected our adversary to
do. That is what constitutional law means because our constitution becomes meaningless if it

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is not a constitution as interpreted by the courts. This is what we lawyers are talking about
when we speak of justice under the law. Pollock was therefore right when he concluded: There
is no more arduous enterprise for lawful man, and none more noble, than the perpetual quest
of justice, laid upon all of us who are pledged to serve our lady the Common Law. It is because
the Supreme Court has always been dominated by this quest for justice when faced by problems
that are more important and more difficult than those that any other court in the history of the
world has been asked to face, that all of us tonight are glad and proud to pay to Chief Justice
Warren and his fellow Justices our tribute of honour and gratitude.

CONCLUSION:

The principle audi alteram partern goes back many centuries in our law. In modern
times opinions have sometimes been expressed to the effect that natural justice is so vague as
to be practically meaningless. But I would regard these as tainted by the perennial fallacy that
because something cannot be cut and dried or nicely weighed or measured therefore it does not
exist. the admirable Golden Anniversary issue of the Journal of the American Judicature
Society states that the Supreme Court of the United States is "the greatest judicial tribunal the
world has ever known." I agree with this, but I hope that my fellow benchers at Lincoln's Inn
will not hear of this as they might disbar me.

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