Judicial aristocracy

Tim argues that British democracy is being undermined by judicial activism.  Supreme Court Justice Antonin Scalia made a similar argument to the Times last year using the more poetic and, perhaps, informative term 'judicial aristocracy'.  Tim is going to write to Dominic Grieve requesting clarification of the Conservative Party position on this issue.  Unfortunately, this article by Fraser Nelson suggests that Grieve might take a different position.

There are a number of problems with British judicial activism:

1)  An unnecessary sacrifice of democracy

Many nations have needed written constitutions and judicial power to curb majority tyranny.  They're an imperfect tool, though.  Constitutions can be circumvented and such 'safeguards' imply sacrificing the principle of rule by the demos to a significant degree.  It is to our nation's eternal credit that we haven't needed to make that sacrifice.  We've done as well as any, and far better than most, without it.  I see no need to sacrifice that great tradition now.  The great threats to our liberty come not from an angry majority but unnaccountable minorities whether in Europe or our own bureaucracy and political class.

2)  Lawyers don't think like 'normal' people

Every profession comes with its own set of cognitive biases.  A tendency among its practitioners to a particular way of understanding the world around them.  These biases can affect the way people approach important debates.  One example is that lawyers tend to be sceptical of deterrence.

A couple of generalisations:  Every economist, if they're honest and believe in their discipline, believes in deterrence.  We understand the world in terms of incentives and expect that setting up a powerful disincentive to being a criminal will, ceteris paribus, reduce the amount of criminality.  We have very good empirical evidence that this is the case.  By contrast, every lawyer, in their heart of hearts, thinks that the very idea of deterrence is unhelpful and, most of the time, pretty specious.  They spend their entire career thinking in terms of individual cases.  That's usually how they learn law and how they practice - one case at a time.  The big picture isn't something they have any serious reason to look at and sentencing one person harshly just to affect the attitudes of others seems unjust.

These two disciplines sit at opposite ends of this crucial debate. Worse, we can't even talk to each other.  Economists sound brutal and unrealistic to the lawyers, lawyers sound woolly-minded and sappy to the economists.

There is no infallible way of getting to the truth of the matter, which side is right.  It is a decision that is rightly left to the people in a democracy as I set out in point one.  Further, if the lawyers are given a privileged position to change policy, beyond their ability to convince people, it can mean a massive bias against the right-wing position.

3)  Weakening the defence of liberalism

Constitutions and the judges who enforce them cannot, themselves, defend liberalism.  The populace can always ignore, change or pervert constitutional rules and disregard or replace judges.  A constitution only has value if it has legitimacy.  The American Constitution, and the power of judges to enforce it, isn't contested.  People believe that free speech, for example, does deserve particular protection as a constitutional right.  There is no such source of legitimacy for the British judiciary and they appeal to foreign documents such as the ECHR.  This means that the judicial aristocracy actually weakens, by association, liberalism itself by association.  The concept of "human rights" itself becomes thought of, by the population at large, as a foreign charter defending awful men on spurious grounds.

I've put these arguments to lawyers many times.  The last is usually the most successful.

Comments

[Ali Gledhill]

"Every profession comes with its own set of cognitive biases. A tendency among its practitioners to a particular way of understanding the world around them."

Judges, for example, tend to wish to uphold legislation. As I commented on Tim's piece, I see no signal that judges have been or are issuing judgements that contradict the law. If the executive feels that judges are making their lives difficult, it is up to them to have Parliament make legislation better.

The real issue here is that Parliamentary lawmaking is not what it should be - in either chamber. More to the point, an elected House of Lords will make it much, much worse.

[anthony scholefield]

The biggest issue is that judges are encroachingon
1.The executive and forcing ministers to look over their shoulder
2.Have got into the habit of issuing orders that involve the taxpayer spending money despite the fact that they have no authority to do so.
It is time for ministers to take well a judged case and instruct their staff not to obey judicial rulings on the grounds above that the judiciary has exceeded its constitutional place.

[Matthew Sinclair]

Ali,

Yes, parliament should produce legislation more carefully. However,`there is a genuine judicial activism going on, based on the ECHR, that parliament needs to stop encouraging and start confronting. Take a look at the examples of judicial activism cited here (pp. 3-6):

http://www.douglascarswell.com/files/pdf_pdf_19.pdf

[Matthew Sinclair]

As to the Lords. I agree that we do need to think about how to get Lords of substance. However, I think an appointed Lords is just about the worst solution imaginable. Having a second chamber made up of appointees is bound to lead to too many cronies and too many donors.

[Patsy Sergeant]

I wanted to post on the earlier thread, but couldn't get back.

In the newspaper today/Saturday is a report of a 'landmark ruling' by Mr. Justice Mitting, which I think fits in perfectly with what is being referred to in this thread.

The article entitled 'Failed asylum seeker we can't deport is given free NHS care', has a first paragraph stating 'Thousands of failed asylum seekers are entitled to free NHS care despite their cases being bogus, the High Court ruled yesterday.'

'Shadow Home Secretary David Davis, said: 'This chaos is a shocking indictment of the confusion and paralysis at the heart of this government.' !!!

It seems to me that there a two strands here, one is the Judiciary, which has no mandate from the public to make rulings which will affect everybody's wellbeing AND their pocket in the long run, but at the same time the senior Judiciary is much less likely to be affected by their own rulings, for example in this particular case which concerns the NHS, most if not all senior Judges would enjoy private medical treatment!

The other strand is this government that seems over ten years, to be less and less inclined to take responsibility for the consequences of bad policies, often hastily initiated.

It would be quite logical to come to the conclusion that this government would actually welcome handing over ever more responsibility for running this country to the EU!!!!

[bill]

Whilst by no means all lawyers are lefties (many just want to earn a lot of money), if you want to change society law may seem as good a way as politics for some (too many IMO). And what I consider the more politically motivated ones have been very successful in doing is in changing the legal socio-political culture. I guess a similar process has occured elsewhere in society where people of a small "c" conservative persuasion have difficulty recognising institutions which from today's standpoint seem foreign and hostile compared
to few decades ago. Until the Tories recognise what they are up against and especally the Cameroons get their heads out of the sand, we don't stand much of a chance.

[Adam in London]

Is ConHome arguing we ought to tear up the common law in order to 'defend Britishness'. Good grief...

[Richard]

http://www.amazon.co.uk/Laws-Order-What-Economics-Matters/dp/0691090092/ref=sr_1_1?ie=UTF8&s=books&qid=1208082674&sr=8-1

Law and economics can go together if one is a lawyer with a great interest in economics and vice versa.

[Richard]

Further to my last post, the problem in my experience is that right-wing lawyers tend to work for City law firms where they're not really in a position to make changes in the law. It's the left-wing lawyers and criminal barristers who have the most legal influence.

[Charles Tannock MEP]

Speaking personally I have been concerned about judicial activism both domestically and at EU level for years. On the home front the way our judges have sought to make our immigration and asylum policy with no electoral mandate has led me to conclude that unless we reassert the primacy of law and policy making to the UK parliament and the executive (HMG) we need to resile from parts of various international conventions in particular the Geneva Convention on Refugees and put the EU on notice this will be our policy as we have stated for Social Chapter Policy. It would of course be best if we could legislate to instruct judges to interpret such conventions in a narrow fashion like German judges do rather than in the broad liberal approach they have chosen to take.
I also believe that as part of the reform of the Lords we should remove the Law Lords as legislators, and setup a supreme court, and more controversially if judges want powers of judicial review install a judicial appointments committee like the US Senate has for confirming senior judicial appointments and thus ensuring through MP scrutiny and questioning judges reflect the spread of public opinion in key sensitive political issues where they now seem determined to impose a form of social engineering to their taste on the public with total disregard to popular opinion.
In the EU there has been a tendency for the ECJ to effectively make law and polcy where there has been a gap and its important that the other EU institutions such as the EP where I sit confront this head on by light touch legislating first if only to prevent further regulation being imposed by judges!

[Jonathan]

Judicial activism is a direct threat to democracy. Partly it is parlaiment's fault for poorly drafting laws and partly the Lord Chancellor's for choosing judges who think themselves makers rather than interpreters of law. Certainly we should nationalise the ECHR so that it has specific rights not interpetable principles.

Ultimately judges cannot have it both ways. If they want to become politicians then they are going to have to be elected as in the US. Or parliament needs to regain its authority and sack a judge for some particularly egregious bit of making it up as he goes along.

[Matthew Barker]

I think branding judges "activists" is unfair.

on law affecting conviction,Yes, sometimes judges create law withought much, if any, reference to parliament. But his is because they simply have to. Time and time again Law Lords and judges in the Court of Appeal call for Parliament to look at a problem area. examples include duress, provocation and self defence. Time and time again these calls go unheaded. Whats worse is this leads to scenarios where judges make very sensible points which would make good law, but refuse to make it law, prefering to wait for Parliament to wake up.

The best example is reform of self defence. It was proposed in the case of Clegg that if a defendant used a amount force that was more than reasonable, when some force was neccesary, that such defendants should have a partial defence if they were charged with murder. the defence would reduce a murder charge to manslaughter, allowing more flexibility in sentencing. Many conservatives would support this idea as it upholds the moral right for law abiding citizens to defend themselves to a extent which seems neccesary to them, when a criminal is endangering them.

Going on, when judges do make law, they often spend 20 plus years arguing about it and changing their minds. an example is Recklessness. the law here went full circle, with judges first saying recklessness should be subjectively tested, then saying it should be done objectively, then reverting back to the subjective way. In the mean time , many academic lawyers were toying with the idea of an objective test countered by a collection of factors , such as age. It is difficult to find a consisent, "activist", direction in judge made law. Any counter argument about the Human Rights Act etc is terrible. Arguably the most celebrated judges of all time, Lord Denning, greatly disliked the EUs effect of destroying Parliamentary Soveriegnty.

On the sentencing issue, judges have very little discretion as the Sentencing Guidelines Council is very active. Also, its wrong to see lawyers do not see the benefit of detterence. Crucially though, they understand that the best detterent is a likelihood of getting caught. It does not matter how high you set sentences, if your criminals don't think they will get caught you will not detter crime. It's not a balancing act. You have to make detection rates higher first. A definite 6 month prison term is more of a detterent than a possible 6 year term.

[Patsy Sergeant]

As an ordinary member of the public, I do not know precisely who is responsible for the actual construction of all the new laws that have been enacted over the last few years.

Again ordinary people usually assume and indeed expect lawyers, barristers and judges to have a fine knowledge of the English language, and to be competent at the very least in the tight/precise construction and usage of that language.

It is true that it seems to be even more trendy these days to debase our language, and the media has to take a fair amount of responsibility for this, by virtually encouraging sloppy, lazy usage. So Lynne Truss continues on her solo mission to remind us of what the English language can express, if its vocabulary is fully used.

So, we come back to the constructors of the laws - who are they at the moment?? Labour lawyers? Even if they are, it should not be beyond their capabilities to construct a law which is precise enough in its construction, so that it is NOT open to mis-interpretation, or on the other hand has so many loopholes that it is like a colander!!!

It seems to me that this is yet another area that needs so much 'tidying up', when these 'school kids' have been given the push, that it will need a Department of its own. Mind you, maybe there is one already! If that is the case, then it needs a radical overhaul!

[Bill]

Matthew

There is nothing unfair about branding judges "activist". The public have had enough of their self-important opinions and perverse judgements.

BTW

There is only one "t" in deterrence.

[Paul Oakley]

Rather a sweeping analysis from Matthew about what makes lawyers tick!

Although there certainly are left-leaning judges, the increase in judicial activism is overwhelmingly due to the impact of the Human Rights Act. By this statute our sovereign Parliament permitted the courts to make a declaration of incompatibility about primary legislation. This amounts to a constitutional logic bomb.

Even if we repeal the 1998 Act however, a more insidious problem is the regulation of the profession. All practising barristers are required to be members of the Bar Council closed shop even though its disciplinary functions have now been hived off to a new Bar Standards Board.

The ethos of this new body is described by its mission statement of October 2007:
The BSB proposes to concentrate on three objectives in 2008:
- To work towards ensuring diverse entry to the profession
- To work towards ensuring diversity throughout the profession
- To ensure that the BSB conducts its regulatory activities fairly and in accordance with anti-discrimination good practice.

The man in the street might be surprised about this as he would presume that this body would be primarily concerned with fearless investigation of complaints from the public.

Nevertheless, membership of the Bar Council remains mandatory even though it serves no useful purpose save for obsessive proselytising about diversity within the profession. Oh, and occasionally cracking down on the freedom of speech of those barristers who do not subscribe to its liberation theology dogma. See the judgment in Paul Diamond v Michael Mansfield QC

Being cheeky, compulsory Bar Council membership might well itself be contrary to the ECHR right to freedom of association.

[Bill]

Paul

Solicitors and the Bar should have been required to merge.

[michael]

"foreign documents such as the ECHR"

The ECHR is not a foreign document, we helped draft it as a way of implementing the UN Charter. We accepted, it we ratified and now we have incorporated it into national law.

[Mike Turvey]

"By contrast, every lawyer, in their heart of hearts, thinks that the very idea of deterrence is unhelpful and, most of the time, pretty specious."

No we just know that in crimes such as murder and mansluaghter, where calls for deterrance are so often heard, we know from studying the multitude of cases that it does not work. Most unlawful killings amounting to murder or manslaughter occur between people who know each other, often family, often in a fit of anger or panic. 9 times out of 10 the possible punishment would not even enter the pepetrator's head. For the more cold-blooded cases the crime will only have been committed if they think they would never get caught - the gravity of the punishment is irrelevant.

[Bill]

Mr Turvey

When you cite the earlier poster, was that poster referring as you do to "murder and mansluaghter" (sic)?

[Bill]

The crime rate, the violent crime rate, and the homicide rate have shot up in this country over the last 100, 50 and 25 years. At the same time punishments for these crimes have become weaker and weaker, and in some cases meaningless. Res Ipsa Loquitur.

Mike

BTW

There is no "a" "deterrence".

[Paul Oakley]

Sorry Bill, can't agree that solicitors and the bar should be required to merge. And who should make that demand? The government? That would be an unwelcome interference in what ought to be a free market in legal services and as absurd as a requirement that all plumbing and roofing firms should merge.

Certainly, solicitors and barristers should be permitted to merge into a one-stop shop providing complementary services should they wish to do so. However, there is no demand for a "single" profession. Many solicitors do not want to undertake advocacy and most counsel would hate to spend their days fielding phone calls from lay clients and writing letters.

[Bill]

Paul

I did not think you'd agree. But I do think the separation of the two explains, in part,
the other worldliness of some lawyers, might I say, too many lawyers?

[Paul Oakley]

Bill - I hope, for the best of reasons, that you haven't met many lawyers. Public perception has unfortunately been moulded by TV characters such as Rumpole, Kavanagh and Deed. In addition, the silks who enjoy Buggins' Turn as chairman of the Bar Council do tend to bang on embarrassingly about how the Bar is a calling like the priesthood. It's not. It's a job like any other.

[Bill]

Paul

I practised myself for a while (as did my family for at least around a couple of hundred years).

[Paul Oakley]

Some cases certainly seem to last a couple of hundred years Bill!

BTW - apologies for the inaccurate hyperlink above. The Defendant was of course Guy rather than Michael.

[Ali Gledhill]

I must admit to being rather scared by some of the comments here. Lawyers are required to defend or prosecute to the best of their ability, and Judges are required to decide cases according to the law.

If Judges are making decisions that the legislation was not meant to include, it is the fault of those who wrote the legislation. One cannot accuse Judges of "activism" unless their rulings contradict the law, subject to appeal. Until then, it remains the responsibility of lawmakers to write sensible law.

I agree with the commenter above who suggests that the Human Rights Act amounts to "a constitutional logic bomb". It is clearly open to wide abuse, with everyone having a claim to "human rights" within the parameters of the Act. But it is not the fault of lawyers for trying to use it to their clients' benefit, nor of Judges for ruling according to it.

[Matthew]

Matthew Sinclair, I happen to be a fellow LSE Alum so I'll be nice, but your view of lawyers is fairly misconceived. A quick fisk:

2) Lawyers don't think like 'normal' people (What to normal people think like? Or do normal people exist? Or do you mean they don't think like people who aren't lawyers? In which case it's hardly a revelation - people who aren't lawyers don't think like lawyers. Bravo! Lawyers spend their lives trying to identify the reasonable man - but you seem to have identified the unreasonable lawyer without any difficulty.)

Every profession comes with its own set of cognitive biases. (Sorry but, what is a 'cognitive bias'? Do you mean 'professional ethos'? If you do, can you explain why an ethos is a bad thing? And assuming it is bad, can you explain what alternative vision to the ethos we have?)

A tendency among its practitioners to a particular way of understanding the world around them. (Can you tell us this 'particular understanding' you have identified? Do you have an unparticular understanding of the world around you?)

These biases can affect the way people approach important debates. (So we have moved from an ethos, to an understanding - neither of which you have identified - to a bias - which, surprise, you haven't identified - what is this bias? Are you saying, then, that we should eliminate 'cognitive bias' from debates? What do you think would be left?)

One example is that lawyers tend to be sceptical of deterrence. (Evidence? I am a layer, I am heavily in favour of deterrence - I also think we need to build more prisons. But you can't blame Judges for being sceptical of sending people to overcrowded prisons, because simply it won't work - unless they are going away for a long time, they are going to come out worse. That is fact. Reoffending rates are astronomical. Give me a good prison and I'll show you judges who are happy to deter again).

A couple of generalisations: (You mean as opposed to everything said before?!)

Every economist, if they're honest and believe in their discipline, believes in deterrence. (Well economists believe in efficiency - it would be efficient to put people in prison if the chances of someone being guilty were greater than their chances of being innocent, taking into account uncertainty etc. Economists struggle to value intangibles - such as the right to fair trial and the right to due process - that is why they stick to predictions.)

We understand the world in terms of incentives and expect that setting up a powerful disincentive to being a criminal will, ceteris paribus, reduce the amount of criminality. (Actually even on your terms I don't accept that economics would necessarily point in this way - the deterrence value, as has been said above, is fairly negligable for many criminals - my guess is that the increased cost of deterring would not be efficient or the best use of resources, but that is a matter of evidence, and you have none.)

We have very good empirical evidence that this is the case.(Where is it? You have evidence that punishing can deter, of course. But you assume a) information about deterrents being easily spreadable and more importantly b) that you are dealing with rational economic agents! Have you been to a prison? Many prisoners are in some way mentally disturbed? WE shut the mental hospitals, remember?)

By contrast, every lawyer, in their heart of hearts, thinks that the very idea of deterrence is unhelpful and, most of the time, pretty specious.(BS - we lawyers are practical and see what happens - you economists sit behind desks and hypothesise about what would happen in a perfect world.)

They spend their entire career thinking in terms of individual cases. (Can't deny this but is it our job to create a bigger picture? OR do you want lawyers to 'see the bigger picture'? Next time you're wrongly put on trial for fraud, remind your lawyer that he/she should 'see the bigger picture'. Maybe they will see you're an economist, and suggest to the judge that, regardless of your guilt, you should be sent to prison as a deterrent to potential fraudsters. Or perhaps it is the job of politicians to see the bigger picture...)

That's usually how they learn law and how they practice - one case at a time. (As opposed to what? 20 at a time? Come on...)

The big picture isn't something they have any serious reason to look at (well done... and?)

and sentencing one person harshly just to affect the attitudes of others seems unjust. (Nope! deterrence is written into statute... but there are two types of deterrence, general deterrence and specific deterrence. you may think that punishing someone who commits a small crime to prison for years would deter others - it will certainly not deter that person when they come out! AND you are assuming that people will ever find out, in the real world of 'normal people' about specific long sentences. The only way people would find out would be consistently applied harsher punishments. Fine... so build the prisons, but don't criticise lawyers in the meantime!)

These two disciplines sit at opposite ends of this crucial debate. (Well by this stage it might be obvious I'm not with you)

Worse, we can't even talk to each other. (Well if you used words!)

Economists sound brutal and unrealistic to the lawyers, lawyers sound woolly-minded and sappy to the economists. (Only when one tries to interfere with the other? But according you you, each has its own professional ethos, bias, etc... so they are distinct, surely. Or they overlap? But they are at opposite ends of the debate? Nothing you have said in this entire section has made any sense at all, either on your terms or mine.)

There is no infallible way of getting to the truth of the matter, which side is right. (what? there is a truth here? or there is a multitude of policy options? I don't accept you can find truths in this.... unless you are looking for the 'optimal outcome', in which case, lets get rid of the presumption of innocence and all its inefficiency, and we have truth? or there is none.)

It is a decision that is rightly left to the people in a democracy as I set out in point one. (You could have just asserted this and I would have accepted it - why did I read on?)

Further, if the lawyers are given a privileged position to change policy, beyond their ability to convince people, it can mean a massive bias against the right-wing position. (Sir, lawyers are rubbish at influencing policy. That is why the entire legal aid budget has been wiped, thus exposing millions of people to civil wrongs without any access to justice! and there are many lawyers who share the 'right wing position' - BUT, your problem is this. The right wing position should favour economic efficiency where it doesn't affect our core conservative values. That includes process values, rights, and the like. I am sorry that they are not efficient. But I am one conservative who thinks that, just sometimes, other things are more important).

The end.

[Matthew]

Matthew Sinclair, I happen to be a fellow LSE Alum so I'll be nice, but your view of lawyers is fairly misconceived. A quick fisk:

2) Lawyers don't think like 'normal' people (What to normal people think like? Or do normal people exist? Or do you mean they don't think like people who aren't lawyers? In which case it's hardly a revelation - people who aren't lawyers don't think like lawyers. Bravo! Lawyers spend their lives trying to identify the reasonable man - but you seem to have identified the unreasonable lawyer without any difficulty.)

Every profession comes with its own set of cognitive biases. (Sorry but, what is a 'cognitive bias'? Do you mean 'professional ethos'? If you do, can you explain why an ethos is a bad thing? And assuming it is bad, can you explain what alternative vision to the ethos we have?)

A tendency among its practitioners to a particular way of understanding the world around them. (Can you tell us this 'particular understanding' you have identified? Do you have an unparticular understanding of the world around you?)

These biases can affect the way people approach important debates. (So we have moved from an ethos, to an understanding - neither of which you have identified - to a bias - which, surprise, you haven't identified - what is this bias? Are you saying, then, that we should eliminate 'cognitive bias' from debates? What do you think would be left?)

One example is that lawyers tend to be sceptical of deterrence. (Evidence? I am a layer, I am heavily in favour of deterrence - I also think we need to build more prisons. But you can't blame Judges for being sceptical of sending people to overcrowded prisons, because simply it won't work - unless they are going away for a long time, they are going to come out worse. That is fact. Reoffending rates are astronomical. Give me a good prison and I'll show you judges who are happy to deter again).

A couple of generalisations: (You mean as opposed to everything said before?!)

Every economist, if they're honest and believe in their discipline, believes in deterrence. (Well economists believe in efficiency - it would be efficient to put people in prison if the chances of someone being guilty were greater than their chances of being innocent, taking into account uncertainty etc. Economists struggle to value intangibles - such as the right to fair trial and the right to due process - that is why they stick to predictions.)

We understand the world in terms of incentives and expect that setting up a powerful disincentive to being a criminal will, ceteris paribus, reduce the amount of criminality. (Actually even on your terms I don't accept that economics would necessarily point in this way - the deterrence value, as has been said above, is fairly negligable for many criminals - my guess is that the increased cost of deterring would not be efficient or the best use of resources, but that is a matter of evidence, and you have none.)

We have very good empirical evidence that this is the case.(Where is it? You have evidence that punishing can deter, of course. But you assume a) information about deterrents being easily spreadable and more importantly b) that you are dealing with rational economic agents! Have you been to a prison? Many prisoners are in some way mentally disturbed? WE shut the mental hospitals, remember?)

By contrast, every lawyer, in their heart of hearts, thinks that the very idea of deterrence is unhelpful and, most of the time, pretty specious.(BS - we lawyers are practical and see what happens - you economists sit behind desks and hypothesise about what would happen in a perfect world.)

They spend their entire career thinking in terms of individual cases. (Can't deny this but is it our job to create a bigger picture? OR do you want lawyers to 'see the bigger picture'? Next time you're wrongly put on trial for fraud, remind your lawyer that he/she should 'see the bigger picture'. Maybe they will see you're an economist, and suggest to the judge that, regardless of your guilt, you should be sent to prison as a deterrent to potential fraudsters. Or perhaps it is the job of politicians to see the bigger picture...)

That's usually how they learn law and how they practice - one case at a time. (As opposed to what? 20 at a time? Come on...)

The big picture isn't something they have any serious reason to look at (well done... and?)

and sentencing one person harshly just to affect the attitudes of others seems unjust. (Nope! deterrence is written into statute... but there are two types of deterrence, general deterrence and specific deterrence. you may think that punishing someone who commits a small crime to prison for years would deter others - it will certainly not deter that person when they come out! AND you are assuming that people will ever find out, in the real world of 'normal people' about specific long sentences. The only way people would find out would be consistently applied harsher punishments. Fine... so build the prisons, but don't criticise lawyers in the meantime!)

These two disciplines sit at opposite ends of this crucial debate. (Well by this stage it might be obvious I'm not with you)

Worse, we can't even talk to each other. (Well if you used words!)

Economists sound brutal and unrealistic to the lawyers, lawyers sound woolly-minded and sappy to the economists. (Only when one tries to interfere with the other? But according you you, each has its own professional ethos, bias, etc... so they are distinct, surely. Or they overlap? But they are at opposite ends of the debate? Nothing you have said in this entire section has made any sense at all, either on your terms or mine.)

There is no infallible way of getting to the truth of the matter, which side is right. (what? there is a truth here? or there is a multitude of policy options? I don't accept you can find truths in this.... unless you are looking for the 'optimal outcome', in which case, lets get rid of the presumption of innocence and all its inefficiency, and we have truth? or there is none.)

It is a decision that is rightly left to the people in a democracy as I set out in point one. (You could have just asserted this and I would have accepted it - why did I read on?)

Further, if the lawyers are given a privileged position to change policy, beyond their ability to convince people, it can mean a massive bias against the right-wing position. (Sir, lawyers are rubbish at influencing policy. That is why the entire legal aid budget has been wiped, thus exposing millions of people to civil wrongs without any access to justice! and there are many lawyers who share the 'right wing position' - BUT, your problem is this. The right wing position should favour economic efficiency where it doesn't affect our core conservative values. That includes process values, rights, and the like. I am sorry that they are not efficient. But I am one conservative who thinks that, just sometimes, other things are more important).

The end.

[Matthew]

Sorry double post!

[Matthew Sinclair]

Paul Oakley,

I agree that the Human Rights Act is vitally important here. It should be repealed and we should leave the ECHR.

Mike Turvey and Matthew,

Some examples of the effectiveness of deterrence even in the case of murder is here:
http://www.nytimes.com/2007/11/18/us/18deter.html?_r=1&n=Top/Reference/Times%20Topics/People/L/Liptak,%20Adam&oref=slogin

"According to roughly a dozen recent studies, executions save lives. For each inmate put to death, the studies say, 3 to 18 murders are prevented."

Matthew Barker,

Surely the deterrent is simple the probability of being caught times the punishment. That implies that, with the probability of being caught held constant, doubling the punishment will double the deterrent. This might not be exactly true but I see no reason to believe that increasing punishments should not make a concrete difference to strength of deterrent.

[Angelo Basu]

This is a weird thread. Judges and lawyers are being criticised for making interpretive judgments which conflict with some notion of a clear and fixed meaning of "law" generated by Acts of Parliament when they are required by an Act of Parliament to do so?

Lawyers and judges interpret Statute when it is not literally clear how it is intended to apply (in the context of all other relevant laws). If the literal meaning is clear there's nothing to do and nothing is done.

This is difficult to do in a "democratic" way because in addition to not having a written constitution we have a common law system so that many basic principles of law are not derived from Statute at all. It isn't helped by having incorporated a system of law which relies on "purposive" interpretation (ie the European canon) rather than literary interpretation. It isn't helped by the proliferation of overlapping Statutes passed by recent governments.

Judicial activism is easy to criticise but at the same time, what use would a judiciary which answered any hard question "We don't know, maybe Parliament will decide one day" be? Was it unacceptable judicial activism for Lord Atkin to have done anything other than say "Well, Ms Donoghue, I've no idea what should happen after you've been given food poisoning by a snail in your ginger beer, but you needn't have bothered coming to the Court, perhaps you could write to your MP"?

[Ken Adams]

Perhaps I am missing something, but it seems hardly fair to instruct the judges to apply international law and then complain when they do. I think that Parliament was given a chance to vote to re-assert the supremacy of Parliament on an amendment to the Lisbon Treaty Bill, as most Conservative chose to obey the party whip and not vote for it then I do not see that they have anything to complain about.

Notwithstanding any provision of the European Communities Act 1972, nothing in this Act shall affect or be construed by any court in the United Kingdom as affecting the supremacy of the United Kingdom Parliament.