Text 9 Lawyers as advisers, not judges

It may seem strange that in the Roman world, which valued law highly, legal experts were advisers rather than judges. But so long as a society thinks that the ruler should do justice personally, the legal input has to come from elsewhere. If the laws are at all intricate, the ruler will not be expert in them. The role of lawyers is then to advise the ruler about the law rather than to sit in judgment themselves.

The idea that the ruler should not himself be a judge, and should not interfere with judges, comes much later. It was not until 1607 that James I of England was told by Chief Justice Coke that he was not learned in the law and so could not judge a lawsuit himself. The king strongly disagreed, but his view was rejected.

In the next century (1748) the French writer Montesquieu argued that, for citizens to be truly free, the main powers of government must be in the hands of different people. So the legislative power of making laws, the executive power of carrying them out and the judicial power of judging whether they had been broken should be separate. This theory (the separation of powers) dominated the American constitution of 1787 and is now widely accepted. Where it is taken seriously judges cannot be dismissed for giving decisions that the government dislikes, but only for corruption or incompetence.

Text 10 the decline of common law

From the late nineteenth century, however, given the changing socio-economic conditions of the times, common law has been steadily eroded by parliamentary legislation. Today statutory law is extremely important; it is supreme where a conflict occurs between it and the common law. Hence reference is frequently made to the doctrine of parliamentary supremacy or sovereignty. Nothing in the long run can compete with parliamentary law. That does not mean to say that judicial precedents have also diminished at the same rate. On the contrary, judicial interpretation of the clauses of a statute remains crucial, particularly when a new Act of Parliament is passed or an existing one amended. The first case - a test case -brought under such an Act will be watched closely by the legal and political professions. The judicial interpretation in that kind of case will, in itself, establish a precedent, but in statutory as opposed to common law. Nonetheless the term 'precedent' is historically associated with the common law. So how do judges make decisions, particularly in common law cases? One way in which they might do so is to use the deductive method. Deduction may be regarded as reasoning from the general to the particular. A rule or a theory is developed in the judicial mind, or held by that mind to exist, and as a result that rule leads logically to a particular conclusion given all the circumstances of the case in hand. Induction is the opposite: reasoning moves from the particular to the general. The circumstances of the case suggest that a particular rule of law be formulated or found. The inductive approach, however, does not necessarily demand a particular conclusion. It is probably rather more accurate to say that English judges generally proceed by analogy, thus avoiding the potential conflicts between deduction and induction.

Analogy is the art of comparison: judges will compare similar problems and similar circumstances. They will see whether two or more apparently like problems might have to be decided differently according to the facts and the circumstances of each case. It is essentially a cautious, pragmatic approach; indeed judges might well be accused of being generally more cautious, or possibly more conservative, than their political masters in Parliament who have been responsible for so much of twentieth-century law. Analogy is reasoning by example: example and comparison have been at the heart of common law over the centuries. In short, analogy is reasoning from the particular to the particular; thus it may be viewed as imperfect or primitive induction.