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THE POLITICS of the COMMON LAW PERSPECTIVES, RIGHTS, PROCESSES, INSTITUTIONS Second Edition

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THE POLITICS of the COMMON LAW PERSPECTIVES, RIGHTS, PROCESSES, INSTITUTIONS Second Edition THE POLITICS OF THE COMMON LAW PERSPECTIVES, RIGHTS, PROCESSES, INSTITUTIONS Second Edition ADAM GEAREY, WAYNE MORRISON AND ROBERT JAGO THE POLITICS OF THE COMMON LAW Perspectives, Rights, Processes, Institutions 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 post colonial common law must be understood as an articulation of human rights and open justice. The book examines the impact of human rights 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 fi nal 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 fi nd a balance between the requirements of economics and the demands of justice. Professor Adam Gearey, Birkbeck College, University of London; visiting professor in the Faculty of Law at Makerere University, Uganda (2001–2); the University of Pretoria, South Africa (2004) and the University of Peace, Costa Rica (2008–9); visiting fellow in the Center for Law and Society, University of California, Berkeley (2008–9). Professor Wayne Morrison LLD, PhD, LLM, LLB, (Barrister and Solicitor of the High Court of New Zealand) is Professor of Law, Queen Mary, University of London and former Director of the University of London’s International Programmes for Law. Robert Jago MPhil. (cantab.) is a Senior Lecturer and Deputy Head of the School of Law at the University of Surrey. He is also a regular visitor to HKU SPACE where he teaches Public Law. This page intentionally left blank THE POLITICS OF THE COMMON LAW Perspectives, Rights, Processes, Institutions Second Edition Adam Gearey, Wayne Morrison and Robert Jago Second edition published 2013 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2013 Adam Gearey, Wayne Morrison and Robert Jago The right of Adam Gearey, Wayne Morrison and Robert Jago to be identifi ed as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identifi cation and explanation without intent to infringe. First edition published by Routledge-Cavendish 2008 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Gearey, Adam. The politics of the common law / Adam Gearey, Wayne Morrison and Robert Jago. – Second Edition. pages cm Includes bibliographical references and index. ISBN 978-0-415-66236-9 (pbk : alk. paper) – ISBN 978-0-203-07199-1 (ebk) 1. Common law–Great Britain. 2. Justice, Administration of–Great Britain. 3. Law–Political aspects–Great Britain. I. Morrison, Wayne. II. Jago, Robert. III. Title. KD671.G43 2013 340.5'70942–dc23 2012051037 ISBN: 978–0–415–66236–9 (pbk) ISBN: 978–0–203–07199–1 (ebk) Typeset in Sabon by Refi neCatch Limited, Bungay, Suffolk Praise for The Politics of the Common Law: ‘Finally, a book that brings the political, the personal, the economic and the aesthetic into the heart of the institution and into the method of law. A perfect paradox, The Politics of the Common Law is a strikingly radical introduction to a grindingly conservative discipline. This book seeks to forge a plural identity for a tradition adrift between memories of empire and continental confusions of human rights. This book is a necessity for any student eager to engage with contemporary transformations of the common law.’ – Professor Peter Goodrich, Cardozo School of Law, USA ‘All too often in recent years democratic politics and the law have seemed to be at odds. Yet The Politics of the Common Law brings them dramatically back together. Gearey, Morrison and Jago do all of us an enormous favour by revealing so powerfully the democratic potential of a reimagined common law. The book should be required reading for everyone who wishes to reconcile human rights, individual liberties and the collective politics of participation.’ – Professor Marc Stears, Professor of Political Theory, University of Oxford and Visiting Fellow, Institute for Public Policy Research, UK ‘This is an invaluable book. At one level it is an introduction to the study of the common law in the post-Human Rights Act environment. But unlike many books of this type it also sets out an ambitious thesis which weaves together an account of the common law in a post-colonial context with an argument about the centrality of participation and public reason to the legitimacy of the law. As such it is not only an excellent student textbook, but also makes a contribution to academic debates about the theory and politics of the common law.’ – Professor Lindsay Farmer, University of Glasgow, UK ‘The authors of this book present the common law around three key themes – a concern with legal culture; the politics of the judiciary and the legitimacy of the common law; and the integrity of civil and criminal procedure. They strongly support the view that the authentic common law tradition embraced difference and plurality in the past and argue for this understanding to be followed through in present times. An important focus in their approach is the recognition of and remembrance of law’s complicity in the process of Empire. They underscore the necessity of law’s authority to rest on transparency, integrity, participation and open justice. Common law proce- dures are addressed through human rights, thereby disclosing a critical perspective on common law. The book raises a question that should be central to the study of common law no matter where, namely “To what extent can the common law help build plural communities that are committed to democracy and the rule of law?’’ This book brings forth fresh and alternative angles on the study of the common law … [it] illustrates a deep refl ection and contemplation of some of the most important and diffi cult questions confronting legal scholars and students of law and opens possibilities for further refl ection by way of textured engagement.’ – Karin van Marle, Professor and Head of the Department of Jurisprudence, Faculty of Law, University of Pretoria, South Africa ‘ The Politics of the Common Law (2nd ed) throws down a challenge that no law student should be spared. The authors eschew formalist depictions of law and legal process that typify introductory texts. They interweave the normative present and historical past to lay bare, with disturbing clarity, the tensions which shape the law and its institutions. Their unique text takes the reader inside the law, as something organic and living, not lifeless and detached as standard texts so often portray.’ – Philip A Joseph LLD, Professor of Law, University of Canterbury, New Zealand CONTENTS Authors’ acknowledgements viii Publisher’s acknowledgements ix 1 Introduction Part I 1 2 Introduction Part II 10 3 ‘As a system . the common law is a thing merely imaginary’ 31 4 Recording law’s experience: features of the ‘case’ 60 5 The postcolonial, the visible and the invisible: the normal and the exceptional 84 6 Institutionalising judicial decision making: public reason and the doctrine of precedent 114 7 What we talk about when we talk about common law: the practice of precedent 129 8 The mirror and the dialogue: the common law, Strasbourg and human rights 148 9 The judicial practice of statutory interpretation 164 10 The politics of the judiciary revisited: rights, democracy, law 188 11 Judges and democracy 208 12 The integrity of the court: judgment and the prohibition on bias 221 13 The value of participation: the rights of the defence, equality of arms and access to justice 238 14 Open justice, closed procedures and torture evidence 258 15 Imagining civil justice 274 16 Imagining criminal justice 300 17 Conclusion 331 Bibliography 340 Index 350 AUTHORS’ ACKNOWLEDGEMENTS My love and great thanks to Mary Gearey – still il miglior fabro; also thanks to my comrades at Birkbeck. Honourable mention to Arthur and Niamh Gearey – fans of Tom Paine and innate philosophers of justice. Thanks to Emma Nugent for patience and calm advice. Gilly Shapiro selfl essly laid down her weekend to ensure that this book was published. Finally, in the real world: Deadeye Douglas, the Chailey Kid, El Machiato and The Rustler. This, my friends, was not written on the back of my hand. The Gay Hussar, Soho, remains the only place to dine, drink and discuss serious matters. A.G. During this process Lynsey and Karen provided worthwhile distractions with Boris; Julia kept the beer, wine and all things alcoholic fl owing; Paul, as a keen chronicler, kept Facebook relevant; Indira telephoned with reminders of why we do this job and Jane proved herself worldly wise. Charlie provided loving support and constant encouragement. Love to my parents, as always. I continue to be lucky with my family and friends.
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