How to Be a Good Judge

John Gardner

  • The Rule of Law by Tom Bingham
    Allen Lane, 213 pp, £20.00, February 2010, ISBN 978 1 84614 090 7

During the break-up with Kimberly Quinn that precipitated his break-up with the Home Office, David Blunkett is reported to have warned her: ‘The law is on my side. I know because I made the law.’ It doesn’t quite have the melodramatic chill of Judge Dredd’s ‘I am the law,’ but it comes close. And it’s easy to imagine Blunkett saying it, for it nicely sums up the tragically self-important view he took of himself, and of the executive branch of government, during his time in office. It was a view shared by much of the New Labour administration. The law is the servant, they believed, of our duly elected political masters. It is what they say it is and what they want it to be.

This view inverts a central tenet of the ideal known as ‘the rule of law’. Under the rule of law, as Plato put it, ‘law is the master of the government and the government is its slave.’ Where the rule of law prevails, nobody is above the law. The government too must answer to it in everything it does. It’s not only that the government can’t violate the law with impunity, but that it can’t casually change the law to exempt itself. Where the rule of law prevails, the law is resistant to such alteration. It is stable and general and promulgated in advance of the situations to which it applies. It is tested in front of independent judges in open court. Any legal change, under these conditions, takes time and effort, and has implications, often unforeseen, for situations other than the one the law-changer was trying to deal with. So one may turn out not to have made the legal change one was hoping to make. This means that, thanks to the rule of law, it is very hard for a government to get the law out of the way ad hoc so as to clear a quick and easy path to its policy objectives.

Doesn’t that make the rule of law undemocratic, at odds with the rule of the people? Maybe. But the rule of the people is not the rule of the government. In a parliamentary democracy the government is not popularly elected, as the handover of prime ministerial office from Blair to Brown reminded us. The government is a political elite, a career oligarchy, appointed from within an elected (in our case, partly elected) Parliament. Members of the government are elected, if at all, only as members of Parliament, not as members of the government. If the distinction is sometimes forgotten, that only goes to show how much control the government tends to exert these days over parliamentary business, and how little scope there tends to be for the people as a whole – including those who voted for opposition MPs – to do any ruling. So let’s not hear any bleating about the need for the law to be subordinate to democracy from those, like Blunkett, who turn out to be only fair-weather friends to both.

And let’s not overstate the conflict. In at least two ways democracy needs the rule of law. First, the ballot box is not the only mechanism of public political participation; nor is it the only mode of public political accountability. Periodic voting is neither necessary nor sufficient for democratic life. The first democracies acquired their lawmakers by lottery rather than election; politics was not a career but a periodic duty for all. That feature is still echoed in our system of jury selection, a reminder that the courtroom too is a place of public political participation. We exert our influence on public affairs by serving as jurors and lay magistrates, not to mention as litigants (when the government of the day isn’t busy cutting off our legal aid). In the courtroom there are also lawyers and judges, another famous elite. But are they any more of an oligarchy than party politicians? And are they notably less accountable? No. Uniquely among public officials, judges are required to hear and decide any question that is validly brought before them and to produce fully argued public justifications for their final decisions. That makes them uniquely accessible and uniquely exposed, and plainly we wouldn’t be a democracy unless they were. Imagine a country with periodic re-elections of all officials, including judges, but without justice dispensed openly in publicly accessible courts. Such a country shouldn’t be thought of as a democracy because, in spite of its election mania, it would lack an essential way for people to participate in public life, as well as one of the most demanding modes of public accountability for officials.

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[*] Tom Bingham and the Transformation of the Law: A Liber Amicorum edited by Mads Andenas and Duncan Fairgrieve (Oxford, 968 pp., £95, April, 978 0 19 956618 1).