The course offers the opportunity to obtain and develop study skills, as well as a basic understanding of the way in which the common law works.
The material that we will study falls into two thematic groups. The first substantive concern is with common law reasoning. This, in turn, can be divided into a study of how judges interpret cases, and how they make sense of statutes. Judicial reasoning, in both the interpretation of statute and the development of common law rules and principles is creative and law making. Given that there is a constitutional practice that asserts that law making is the task of Parliament, judicial law making has to be kept within certain parameters. In other words, it is not productive to start from the nineteenth century idea that judicial interpretation is passive and merely a discovery of what the law ‘is’. This doctrine reflects a politics of the constitution and the common law that in recent years, and certainly since the Human Rights Act 1998 and since the EU Act of 1972, is less and less a reality. The right way to think about these issues could be put as follows: given that judges do make the law, what are the acceptable limits of judicial lawmaking?
The concern of the course with the judiciary can be seen as a development of these themes. Contemporary studies of the judiciary and the changes in their appointment are alive to the ways in which these issues are essentially political. JAG Griffith’s celebrated book “The Politics of the Judiciary” may have been somewhat over taken by events, but still offers an essential point of reference. It is worth reading this book, understanding its thesis, and its limitations.
The next broad thematic grouping in which the course falls is the study of civil and criminal procedure. These themes are united by Article 6 of the European Convention of Human Rights, which can be understood as a statement of fair trial rights. Thus our concerns with the reforms in civil process, and with the mechanics of the criminal trial, can be seen as raising a broad question about the values of the trial process, the interests that are at stake, and the problematic question of how criminal and civil trials should best be organised to ensure due process. At least in terms of the exam, the Article 6 question tends to be rather neglected. This is a shame, because a good grasp of Article 6 is the best way to understanding the issues of procedural justice that lie behind this course.
Our interest in legal aid is a further development of these themes. Whether or not we can think of a human right to legal aid, the field raises the question of the tension between access to justice, and the necessary limitations on the public money that the government can make available to fund the legal system. We will see that recent reforms raise contentious issues about the political economy of justice. When you look at this issue, it is worth paying special attention to the latter parts of the chapter in the study manual, as most students tend to do no more than memorise the various sections of the Access to Justice Act 1999. You need to have a broad understanding of the politics of legal aid – and recent developments, including the Carter Review, and the critical responses to its recommendations.