Autonomy and the Rule of Law*
MR JUSTICE SEDLEY
We are by now well past the era when law could be perceived and taught as a self-sufficient and self-referential set of rules, elucidated where necessary by textual scrutiny and judicial precedent and applied to facts ascertained by a judge with an aquiline eye, sharpened to the point of infallibility by years of experience at the Bar, for falsehood and prevarication, or by a jury of English yeomen with much the same virtues. Such an account of autonomy required a range of unspoken assumptions, most of them lying beyond my present topic, about the nature not only of law but of adjudication. I mention them in order to draw the contrast with what I want to consider: the need for a society which acknowledges the rule of law to have an independent legal system, and the need in a democracy for such a legal system to be responsive to social concerns without being driven by them. The two are in necessary and perpetual tension. Further, the legal system is itself called on to respect many other autonomies--ministerial discretions prominent among them--without forfeiting its own constitutional obligation to keep the acts of executive government, lower courts and public bodies of all kinds within the law.
To postulate an independent judiciary as an essential element in the rule of law is both to state the obvious and to beg a vast question: independent of whom and of what? Not beholden to governments for its tenure--that goes without saying. Not open to pressure or lobbying in relation to its decisions--certainly. Free of preconceptions--well, yes, if they are the wrong sort and bear on the issues to be tried. But nobody except the guilty wants judges who lack a preconceived hostility to violence or dishonesty. So the desired Olympian detachment is required to be diluted with what is, after all, an equally Olympian capacity for involvement. The problem is to agree what kind of involvement and in what cases it is called for.
There is no disagreement that a necessary quality in an adjudicator is the kind of detachment theatrically portrayed by the use of insignia and garments which render the judge, and hence the judge's pronouncements, impersonal. From the fearsome masks and elaborate costumes worn by the night-visiting judge-enforcers of parts of precolonial Africa (to be____________________