Blair's Speech on 'Rebalancing' the UK Criminal Justice System

The Guardian's website has the full-text of a speech delivered today by the PM, Tony Blair, on reform of the UK's criminal justice system. Personally, I think that, for a speech in the (generally regrettable) genre of 'politician criticises courts (for being soft, activist, impudent etc.)', these remarks are probably a lot more sophisticated and nuanced than average (but then again; the speaker is a lawyer, after all). They do, however, remain a bit chilling to read. Here's a few extracts of Blair's rights & liberties discourse:

"It's no use saying that in theory there should be no conflict between the traditional protections for the suspect and the rights of the law-abiding majority because, as a result of the changing nature of crime and society, there is, in practice, such a conflict; and every day we don't resolve it, by rebalancing the system, the consequence is not abstract, it is out there, very real on our streets.

This is not an argument about whether we respect civil liberties or not; but whose take priority. It is not about choosing hard line policies over an individual's human rights. It's about which human rights prevail. In making that decision, there is a balance to be struck.

I am saying it is time to rebalance the decision in favour of the decent, law-abiding majority who play by the rules and think others should too.

Unsurprisingly, there is a strong desire to (take) refuge in simple explanations and remedies. One is repeal of the Human Rights Act. There are issues to do with the way the Act is interpreted and its case law, which we are examining. But let me be very clear. These problems existed long before the Human Rights Act. Every modern democracy has human rights legislation: and in any event the British Human Rights Act is merely the incorporation into British law of the provisions of the ECHR, to which we have been bound for over half a century.

Besides, in the ECHR, there are countervailing provisions to do with public safety and national security which would permit precisely the more balanced approach I advocate. In addition, of course, Parliament has the right expressly to override the Human Rights Act.

Also, once more, let me be clear. Judicial independence is a foundation stone of the British Constitution and our Judges are rightly respected and admired for their quality the world over.

I am afraid the issue is far more profound: it is the culture of political and legal decision-making that has to change, to take account of the way the world has changed. It is not this or that judicial decision; this or that law. It is a complete change of mindset, an avowed, articulated determination to make protection of the law-abiding public the priority and to measure that not by the theory of the textbook but by the reality of the street and community in which real people live real lives.

Such is the changing nature of that world and the ferocity of those forces, we need to adjust, to reclaim the system and thereby the street for the law-abiding majority. That means not disrespecting civil liberties but re-assessing what respect for them means today and placing a far higher priority, in what is a conflict of rights, on the rights of those who keep the law rather than break it."

Friedman on The Politics of Judicial Review

Bepress notified publication of "The Politics of Judicial Review" by Professor Barry Friedman (NYU School of Law) on Nellco (New York University Law and Economics Working Papers, No. 45). Here's the abstract:

This article marries the positive literature regarding judicial behavior to the normative literature regarding judicial review. Though scholars in the legal and political science academies both study judicial review, their approaches are dramatically different. Legal scholars tend to the normative, studying how judges should behave. Political scientists and political economists ask positive questions: how do judges behave, and why? The central thesis of the article is the normative literature about judicial review will remain impoverished until it takes account of the positive scholarship. Ought implies can; much of the positive literature suggests judges cannot or will not behave as normative scholars demand.

The article proceeds in four parts. After an Introduction, there is a brief historical discussion to explain why normative and positive scholarship parted company in the early 1940s. The heart of the article follows. This part is a comprehensive examination of the political influences on the constitutional judges. Beginning with the politics of the judge herself, the article then moves out in concentric circles to examine (a) the politics of judging on a collegial court; (b) the difficulties the Supreme Court faces in managing a large judicial hierarchy; (c) the influences of the other branches on Supreme Court decision making; and (d) the relationship between public opinion and judicial review. In each section the goal is to show how confronting normative aspiration with political reality refocuses the questions that ought to be asked about judicial review. A subsidiary goal is to introduce normative scholars who are unaware to the vast positive literature about judicial behavior. The final part examines how the political influences described here ought to bear upon normative scholarship on judicial review.

Resnik on Law's Migration

Judith Resnik (Yale Law School) has posted "Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry" (YLS Public Law Working Paper No. 110, Yale Law Journal, Vol. 115, May 2006) on SSRN. Here's the abstract:


Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of foreign law provides important lessons for contemporary debates.

Through examples from conflicts about slavery, the rights of women, and the creation of the United Nations, I chart the anxiety occasioned when American law interacts with human rights movements. At times, through silent absorption rather than express citation, some of the foreign sources become lost in translation, and the new rights become constitutive elements of American identity.

To conceive of these debates as engaging only questions of national boundaries is, however, to miss the reliance on federalism as a justification for declining to participate in transnational rights work. Yet America's federalist structure also serves as a path for the movement of international rights across borders. As illustrated by the adoption by mayors, city councils, state legislatures, and state judges of transnational rights stemming from the U.N. Charter, the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and the Kyoto Protocol on global warming, the debate about transnationalism is deeply democratic, with significant popular engagement reframing American norms. Such local government actions require revisiting legal doctrines that presume the exclusivity of national power in foreign affairs - as that which is foreign is domesticated through several routes.