Whatever our constitutional woes, we do have not American judges, and thanks be for that. We have non-political, neutral judges, and that is an abomination to the upcoming radical establishment.
I enjoy the satires of our judges, sitting bewigged and asleep over long, dusty cases in long, dusty courts, but mainly because I know how far it is from the reality in the courtroom and from the bewigged man and women themselves, whom I have frequently met on social occasions (lest you consider that I often find myself up before them in court, which I do not – I’ve never been caught).
Britain has the best judges in the world, so the judges tell me, and it seems a miracle that we do when there are no detailed systems in place to regulate every aspect of their appointment and discipline, but study suggests that they are best just because there are no such systems. The British constitution works because it is largely unwritten and works by understandings sufficiently flexible to deal with exigencies, and our appointment of judges works by understandings sufficient to their needs. What is more, it minimises the infiltration of the system by activists.
The faults in America may first be blamed on the circumstances of the creation of the United States in that it was founded by lawyers, and in the full flush of confidence in the Enlightenment. The system written by lawyers naturally gave primacy to the law as arbiter of all things, even of the very process of making law and the extent to which to may be made. We have a more nuanced understanding, under the rule of law, but not the rule of lawyers.
Largely the judiciary in all three of the United Kingdom’s jurisdictions has escaped the political fray by not being political: unlike the United States, British judges do not have power to strike down primary legislation they personally dislike. Secondary legislation and wild administrative decisions are open for challenge, and there is no shortage of crowd-funded activists who set out do challenge decisions in the courts, but so far the courts have been robust: it is not their role to make decisions entrusted to the political sphere. They get close some times, and they can overstep the mark – which may be the subject of a second article. For now though the line is held to keep judges non-political, without which they cannot hold the respect which necessary for the equal rule of law to prevail.
If all is as well as it could be, naturally the judges are under attack. Neutrality is a crime in the eyes of the determined radical, the social justice warrior. They demand control for their opinions of all the commanding heights of the state, and the judges must conform. In the light of that mandate that threats to judicial independence have come and will come and become more strident as each new step is won. The demand for diversity is not isolated and benevolent, but the first necessary step. It is not to only threat to the stability of the current system: these I will look at in a Part 2 article.