(9) Law

 The History of Law - The Magna Carta

History of law


Doing what comes naturally

 Moral questions have, of course, absorbed philosophers since Aristotle. Theories of natural law have sought to resolve the conflict between what ‘is’ and what ‘ought’ to be. Its fundamental contention, in simple terms, is that what naturally is, ought to be. What occurs in nature is good; we should seek to pursue it. Reproduction is natural; therefore we ought to create offspring. As Cicero, the Roman lawyer put it:


True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting. … It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. … [God] is the author of this law, its promulgator, and its enforcing judge.


Contemporary accounts of natural law owe much to the Catholic Church, especially the careful works of the Dominican, St Thomas Aquinas (1225–1274), whose principal work Summa Theologiae contains the most comprehensive statement of Christian doctrine on the subject. In the 17th century in Europe, the exposition of complete divisions of the law purported to be based on natural law. Hugo de Groot (1583–1645), or Grotius as he is commonly called, is associated with the secularization of natural law. In his influential work De Jure Belli ac Pacis, he asserts that even if God did not exist, natural law would have the same content. This was a significant foundation for the emergent discipline of public international law.

The 18th century saw Sir William Blackstone in England proclaiming the significance of natural law in his Commentaries on the Laws of England. Blackstone (1723–1780) begins his great work by espousing classical natural law doctrine – as if to consecrate English law by this appeal to God-given principles, an attitude that drew the fi re of the Utilitarian philosopher and legal and social reformer Jeremy Bentham (1748–1832), who derided natural law as ‘a mere work of the fancy’.

Despite his scorn, natural law has been exploited to justify revolutions – especially the American and the French – on the ground that the law infringed individuals’ natural rights. The American Revolution against British colonial rule was founded on an appeal to the natural rights of all Americans, in the lofty words of the Declaration of Independence of 1776, to ‘life, liberty and the pursuit of happiness’. As the Declaration puts it, ‘We hold these truths to be self-evident, that all men are created equal, and that they are endowed by their Creator with certain unalienable rights.’ Equally rousing sentiments were included in the French Declaration des droits de l’homme et du citoyen of 26 August 1789, which refers to the ‘natural rights’ of mankind.

And natural law implicitly underpinned the Nuremberg war trials of Nazi officials which established the principle that certain acts constituted ‘crimes against humanity’ even if they did not violate particular provisions of the positive law. The judges in these trials did not appeal explicitly to natural law theory, but their judgments exemplify an essential acknowledgement of the idea that the law is not automatically the exclusive criterion of right and wrong.

Our epoch is one of growing public accountability. Or, more precisely, we now seek to prosecute the perpetrators of genocide and other crimes against humanity, and the impunity enjoyed by malevolent government officials, their collaborators, and military commanders is gradually being eroded. The recent establishment of the International Criminal Court (ICC) at The Hague is a remarkable recognition that evil dictators and their henchmen should not be allowed go scot-free. Although the current United States administration has set its face against the court (principally because of fears both that it would undermine US sovereignty over judicial matters relating to American subjects and because its troops might face prosecution), this may well change under a future president. The court’s jurisdiction is confined to ‘the most serious crimes of concern to the international community as a whole’. This includes

crimes against humanity, genocide, war crimes, and crimes of aggression. The prosecution of Slobadon Miloševic, the former president of Yugoslavia, before the International War Crimes Tribunal ended abruptly in 2006 when the defendant died. He was charged with genocide in Bosnia-Herzogovina, crimes against humanity in Croatia, and offences relating to atrocities in Kosovo. The former prime minister of Rwanda was sentenced to life imprisonment for genocide and crimes against humanity. The trial in Iraq of Saddam Hussein resulted in his execution as well as the execution or imprisonment of several of his cronies.

No serious analysis of law and morals can be conducted without reference to the concept of individual rights. Moral claims are regularly transformed into moral rights: individuals assert their rights to a whole range of goods, including life, work, health, education, and housing. Peoples assert their right to self-determination, sovereignty, free trade. In the legal context, rights have acquired significance so profound that they are sometimes regarded as synonymous with law itself. Declarations of political rights are often perceived as the trademark of contemporary democratic statehood. And the inevitable clash between rival rights is among the distinctive features of a liberal society.

On the international front, a panoply of human rights conventions and declarations attest to the strength of rights talk. The United Nations Universal Declaration of Human Rights of 1948, and the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights in 1976, reveals, at least in theory, a dedication by the international community to the universal conception and protection of human rights. It demonstrates a remarkable degree of cross-cultural accord among nations.




Judges are the very personification of the law. The judicial function embodies the dispassionate application of evenhandedness, integrity, and the rule of law. Judges resolve disputes, punish offenders and, where there is no jury, and determine guilt. In the more grandiloquent accounts of law and the legal system, judges are its custodians, guardians of its values: sentinels of justice and fair play.

But it is especially the judges’ role in criminal trials that excites public interest. The drama of the law court is irresistible to novelists, playwrights, as well as fi lm and television scriptwriters.

In the English-speaking world, several come instantly to mind. Dickens’ Bleak House is a splendid example. Albert Camus’ The Fall, Kafka’s The Trial, and the popular portrayal of the judicial process in Harper Lee’s To Kill a Mockingbird, Scott Turow’s Presumed Innocent, John Mortimer’s Rumpole of the Bailey series, and bestseller John Grisham’s novels are other striking examples. Shakespeare provides an unforgettable representation of the idea of justice and the forensic process in The Merchant of Venice. Courtroom dramas on fi lm abound. Matinée idols are often cast as plucky advocates: Gregory Peck in the fi lm version of To Kill a Mockingbird, Paul Newman in The Verdict. And courts and lawyers are the stuff of many a successful television series, of which Ally McBeal, The Practice, and LA Law are merely recent instances.

It is easy to see why court proceedings fascinate and entertain. The theatre of a criminal trial is frequently absorbing. The clash of lawyers, the uncertain fate of the accused, the lurid evidence – all excite a voyeuristic curiosity in the presentation. And occasionally the fictional representation of the judicial process is no less spectacular than authentic trials which, particularly in the United States, are often televised live. Where a celebrity is on trial, cameras in court guarantee an enormous audience of viewers – the more gruesome the alleged crime, the better. Few trials, however, achieve this level of vivacity or glamour; they tend to be dreary and tedious.

While a criminal trial may be enlivened by engaging evidence, civil trials normally lack this spice. The court is engaged in the resolution of a dispute. The lawyers who represent the parties seek to persuade the court of the merits of their case. In a common law trial one side cites a previous judgment, arguing that the present case is sufficiently similar to the earlier one that it ought to be followed. The other side seeks to distinguish this precedent by identifying its subtle differences. This is the essence of legal reasoning. Should the losing party appeal, the arguments will be rehearsed before more senior judges. Judges unquestionably exercise onerous responsibilities:


It is an awesome thing to go forward before the judge and await the utterances of his decision … He symbolizes the merger of conceptual justice with organized coercion, the rational human with the mass brute. In him have been remitted the ideals of his culture and the power to compel submission. When a citizen stands in court he feels the immediate impact of that power; it is all assembled and concentrated there on him.


A leading contemporary legal philosopher, Ronald Dworkin, has memorably remarked that ‘courts are the capitals of law’s empire, and judges are its princes’. Courts do play a central role in every legal system. But what precisely is that role? What of the political function of judges? What of their appointment, election, and accountability? Is the jury system a valuable element in the administration of criminal justice, especially in complex commercial criminal trials? Is the adversarial system of common law countries superior to the inquisitorial system of civil law jurisdictions?


The role of judges is fundamental to the common law; the centrifugal force of the judicial function drives the legal system both in theory and in practice. And though it may be less significant in the codified systems of Continental Europe, the influence of judges cannot be overstated.

The judge is the archetypal legal institution. In his robed and exalted independence, he represents the very apotheosis of justice. The ‘social service’ that he renders to the community is, in the words of the English judge Lord Devlin, ‘the removal of a sense of injustice’. The neutrality that informs his judgments in the settlement of disputes is nothing short of an article of faith in a free and just society. The dispassionate judge is the quintessence of a democratic system of government. And the ostensible delineation between legislation and adjudication is among its most celebrated hallmarks.

Although this attractive and enduring perception of the judicial function is regarded by cynics as a myth, no amount of skepticism can easily dislodge the image of the judge as keeper of the law, protector and repository of justice. Nor is this to deny that judges are, like all of us, tainted by personal predilections and political prejudices. Yet occasionally it is contended that to acknowledge judicial frailty is, in some sense, subversive, ‘as if judges’, as the illustrious American judge Benjamin Cardozo put it, ‘must lose respect and confidence by the reminder that they are subject to human limitations’.


What is the judicial function?


The judicial enterprise lies at the heart of the legal process. In seeking to unravel the mysteries of how judges decide cases, we are engaged in a quest for the meaning of law itself: a theory of what constitutes law is, of necessity, presupposed in the act of judging, as well as any account of it. The orthodox, so-called ‘positivist’ model perceives law as a system of rules; where there is no applicable rule or there is a degree of ambiguity or uncertainty, the judge has a discretion to fill in the gaps in the law.

This view has been persuasively challenged by Ronald Dworkin, who denies that law consists exclusively of rules. In addition to rules (which ‘are applicable in an all-or-nothing fashion’), there are non-rule standards: ‘principles’ and ‘policies’, which, unlike rules, have ‘the dimension of weight or importance’. A ‘principle’ is ‘a standard that is to be observed, not because it will advance or secure an economic, political, or social situation …, but because it is a requirement of justice or fairness or some other dimension of morality’. A ‘policy’, on the other hand, is ‘that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community’. When the judge can find no immediately applicable rule, or where no settled rule dictates a decision, the judge is called upon to weigh competing principles, which are no less part of the law for their not being rules. In such ‘hard cases’, since a judge is not expected to resort to his personal preference in arriving at a decision, he has, contrary to the positivist view, no real discretion.

There is always one right answer, and it is the judge’s task to find it (in ‘hard cases’) by weighing competing principles and determining the rights of the parties in the case before him. This model of adjudication has an obvious appeal to democratic theory: judges do not legislate; they merely enforce those rights that have in the main already been enacted by a representative legislature. Indeed, Dwor kin’s thesis springs from a concern to ‘define and defend a liberal theory of law’ and, in contradistinction to the positivists, to ‘take rights seriously’. It is principally an argument from democracy; Dworkin’s concern to eliminate strong judicial discretion is premised on the offensiveness of judges, who are generally unelected officials unanswerable to the electorate, wielding legislative or quasi-legislative power.


Are courts the best forum for resolving disputes? Can judges be genuinely impartial or objective? What is the purpose of a criminal trial? Are certain courts – such as the United States Supreme Court – too political? Should judges be elected? Is the jury system effective and fair? This chapter will attempt to answer some of these questions.


What is a court?


The ubiquity of conflict among humans necessitates some forum in which they might be amicably resolved. Courts are a prerequisite of all legal systems. They have power, authority – or what lawyers called ‘jurisdiction’ – over specified criminal, civil, and other matters. This entails that their decisions (which are ultimately supported by force) are accepted as authoritative by the parties, who would be unlikely to do so if they did not trust in the independence and impartiality of the professional judges on the bench.

Courts err. Judges are not exempt from human frailty, and there is thus a need for their mistakes to be rectified. The obvious injustice of a wrongly convicted defendant is assuaged by granting him the right of appeal. Equally, the losing party in a civil case may have legitimate legal grounds upon which to argue that the trial court was mistaken in its interpretation of the law. Appealing to a higher court requires a hierarchy that distinguishes between courts ‘of first instance’ and appellate courts. Some trial courts operate with a judge and a jury: juries are responsible for making findings of fact under the direction of the judge, who decides the law. This combination constitutes the judgment of the court. In other trial courts, both fact and law are decided by the judge.

Appellate courts in common law jurisdictions review the decisions of trial courts or of lower appellate courts. Their task is generally restricted to considering questions of law: did the trial court, for example, apply and interpret the law correctly? Normally they do not hear evidence of factual issues, though should new evidence have emerged, an appeal court may evaluate it in order to determine whether the case should be remitted to a court of first instance to be retried.

Courts everywhere naturally follow procedures which, in some countries, have grown bulky and Byzantine. In criminal trials, these procedures are broadly differentiated on the basis of the role of the judge. The common law adopts an ‘adversarial’ system, while civil law countries adopt an ‘inquisitorial’ (or ‘accusatorial’) system. While this distinction is frequently exaggerated, the two approaches do differ in a fairly fundamental way. The common law judge acts as a disinterested umpire who rarely descends into the dust of the fray. Civil law judges, on the other hand, play a more active role in the trial.

The Continental juge d’instruction is directly involved in the decision whether to prosecute. The office originated in France, and exists in a number of other European countries, including Spain, Greece, Switzerland, the Netherlands, Belgium, and Portugal. He is often portrayed as a cross between a prosecutor and a judge, but this is not strictly accurate, for he does not decide whether to lay a charge; that is a matter for the public prosecutor, from whose office he is completely independent. His principal duty is, as the title implies, to investigate the evidence both for and against the suspect, whom he has the power to interrogate.

He will also question victims and witnesses. He may visit the crime scene and attend any post-mortem. In the course of his investigation, he may authorize detention, grant bail, and order searches and seizures of evidence.

It is important to note that his job is not to determine the merits of the case, but to examine the evidence in order to decide whether the suspect should be charged. If he rules in the affirmative, the case is transmitted to a trial court with which he has no connection, and which is not bound to follow his decision. His function is thus not wholly unlike common law committal proceedings or the American grand jury, both of which are designed to screen the evidence to establish whether it crosses the threshold of chargeability. Though supervised by a judge, a grand jury is presided over by a prosecutor. It has the power to subpoena witnesses in pursuit of evidence against the suspect. Both major systems have their virtues and shortcomings. It is generally asserted – especially by common lawyers – that the common law attaches greater significance and value to the presumption of innocence by placing a heavier burden on the prosecution to prove its case ‘beyond reasonable doubt’. This is doubtful. A defendant in a French court is afforded essentially the same rights and protections as one in Florida. All democratic states recognize the presumption of innocence; indeed, it is a requirement of Article 6 of the European Convention on Human Rights which applies to the 46 Council of Europe member states.

Criticism of the adversarial system is not confined to civil lawyers. The occasionally grotesque conduct of criminal trials, especially in America, is an embarrassment to common lawyers. The process sometimes descends into burlesque in which lawyer’s abuse the adversarial process and appears to lose sight of the purpose of the institution. This is particularly evident in high-profile, televised celebrity trials with overpaid lawyers histrionically playing to the cameras and the jury. Many civil lawyers are also astonished by the way in which the common law criminal justice system appears to benefit affluent defendants who are able to afford large legal teams. The trials of O. J. Simpson and Michael Jackson are only the most conspicuous recent examples.

Common law prosecutions are generally pursued by way of a charge or indictment against the defendant in the name of the government, the state, or, in Britain, the Crown. This normally follows a preliminary hearing of some kind to determine whether the prosecution evidence is adequate. To discharge its burden of proof, the prosecution will call witnesses and present its evidence against the defendant. The defence may then argue that there is ‘no case to answer’. If this fails (as it usually does), witnesses and evidence are presented by the defence. Witnesses are cross-examined by the opposing counsel, but the defendant himself has the ‘right of silence’: he need say nothing in his defence, but should he decide to give evidence, he is required to submit to cross-examination. In the United States this right is protected by the Fifth Amendment to the Constitution. Both sides then present their closing arguments. Where there is a jury, the judge gives them their instructions. Its members then deliberate in private. Some jurisdictions require the jury to return a unanimous verdict, in others a majority suffices.


Right to a fair hearing



All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 14(1) International Covenant on Civil and Political Rights




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