Judicial safeguards

Written reasons

A judge must decide cases according to the law. A written judgment allows the parties to scrutinize the reasoning and form an opinion as to whether or not the law was properly applied. If the judge has made a mistake, it can be appealed. Without reasons, a judge is a...

Perjury

Legal adjudications, which govern and affect every right and interest on this side of the grave, of necessity proceed and depend upon oaths. Perjury, therefore, in its general consequence, strikes at the security of reputation, property, and even life itself. A lie...

Adversarial process

The adversarial process is an extension of the right to be heard. Each side in any legal proceedings is entitled to lead the evidence and make the submissions it chooses. Just as the market efficiency relies on the self-interest of every trader, so the adversarial...

Impartiality of the judge and jury

It is not merely of importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done … Nothing is to be done which creates even a suspicion that there has been an improper interference with the...

Open registry

Public access to court documents is just as important as access to the courtroom. All pleadings and affidavits, motions and other documents filed with the court, together with timetables and notes generated by the court, should be available for download from the court...

Transcripts

Transcripts put witnesses, parties, counsel and judges on tenterhooks, forcing everyone to weigh and balance every word they utter. All must proceed honestly and in conformity with the rules and safeguards of the Common Law and statute. Poorly-judged cases can be...

Open courts

All trials should be public so that public opinion, which is the best, or perhaps only cement of society, may curb the authority of the powerful, and the passions of the judge, and that the people may say, ‘We are protected by the laws; we are not slaves’; a sentiment...

Set forms of action

The Romans introduced set forms of action, following the example of the Greeks, and established a rule that each cause should be conducted by its proper action. This was necessary in their manner of judging; it was necessary to fix the state of the question so that...

The right to subpoena

A vital tool in bringing facts to light is the ability to obtain evidence held by strangers to the proceedings. Those laws which make government departments immune from subpoena strike at the root of the ability of the court to get to the truth. Concerns that if the...

Attorney-client privilege

Attorney-client privilege allows a litigant to safely prepare his case. Without this rule, he would be unable to file an affidavit for fear an earlier draft would be entered into evidence. He would also be unable to communicate freely with his lawyer for fear his...

The right to legal representation

The myriad legal protections that have evolved over the centuries to prevent the innocent from being convicted and the wrongdoer prevailing in civil disputes are weakened if a person is not legally represented. Without representation the judge is forced to intervene...

The right to be heard

Parties to civil proceedings and defendants in criminal cases should be allowed to make submissions on the law and address the court (including the jury where applicable) on the evidence. The right to be heard is a component of the right to make your case....

Court rules

Every court must be subject to detailed rules that minutely prescribe its procedures and powers. This gives uniformity and predictability to the conduct of legal proceedings and casts judges in the role of mere technicians, rather than arbitrary tyrants....

Authority

The legislation which establishes every court must minutely prescribe its powers and jurisdiction. A court must never be allowed to determine its own powers, jurisdiction, or rules. Otherwise the judges, in expanding their jurisdiction, become a law unto themselves....