Rule of Law and Common Law

Abstract

Abstract This chapter argues that the conflict earlier described between the executive and the judiciary should reset the debate about the meaning of the ‘rule of law’. To this end, it explores the implications that the history of the Judges’ Rules has for both the ‘Rule of Law’ and the role of judges in relation to the common law. By shedding light on the ambiguous nature of the Rules, it first questions whether they were ‘law’, and if so, whether judges could be said to legitimate authors of them—itself a controversial and heavily contested notion. In this regard, it examines the principal justifications for judicial law-making, and questions how these might relate to other major judicially created or endorsed features of the modern criminal justice landscape, namely, state-induced guilty pleas and the Criminal Procedure Rules (CrimPR). Additionally, it challenges the locus classicus of Tom Bingham as to the meaning of the ‘Rule of Law’. By focusing on the ignored value of adversarial proceedings, it demonstrates how Bingham’s celebrated analysis of the Rule of Law is flawed and its list of ‘ingredients’ left wanting. In consequence, it argues that those transformative initiatives conceived outside formal adversary structures (including the Judges’ Rules, state-induced guilty pleas, and the CrimPR) cannot meet the tests of legitimate policy-making or the rule of law. The chapter ends by looking beyond the debate on judicial law-making in order to address a related deep-seated problem that arises from judges’ involvement in setting criminal justice policy: their entrenched homogeneity.