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Published online by Cambridge University Press: 29 July 2010
Lawyers talk of the common law offence of ‘perverting the course of justice’ by bribing or intimidating judges or jurors, lying to the police or court, concealing or destroying or fabricating evidence. This article argues that the same things are wrong, and wrong for the same reasons, politically as judicially: they prevent people from knowing and applying for themselves the rules by which they are ruled. The sort of excuses typically offered for those perverse practices in politics – that ‘it made no difference’, that ‘they could and should have resisted’ or that it is merely a matter of ‘fair adversarial competition’ – would be laughed out of a court of law, and they should be shunned politically for the same reasons as judicially.
1 Blackstone, William, ‘Of Offences against Public Justice’, Commentaries on the Laws of England (Oxford: Clarendon Press, 1769)Google Scholar, vol. 4, chap. 10. In some Australian jurisdictions it is a statutory offence, and some aspects of it are covered by statutes in England as well.
2 In Britain, ‘no sentence above 10 years has been passed in the last century for this offence’ ( Edwards, Susan S. M., ‘Perjury and Perverting the Course of Justice Considered’ (2007), available at 〈www.buck.ac.uk/publicity/academics/articles/edwards-paptcojc.pdf〉 (accessed 29 Oct. 2007), p. 1Google Scholar).
3 Indeed, Olsen describes it as a ‘garbage can’ comprised of problems looking for solutions, standing ‘solutions’ looking for problems to which they can be attached, and people looking for things to do ( Olsen, Johan P., ‘Public Policy-Making and Theories of Organizational Choice’, Scandinavian Political Studies, 7 (1972), 45–62CrossRefGoogle Scholar).
4 Suspending judges might be another example, in a country where independent judicial review is an important part of the political process; see World Bank, The State in a Changing World: World Development Report 1997 (Oxford: Oxford University Press for the World Bank, 1997), p. 100Google Scholar.
5 Maybe the ruler would have been re-elected, after all; maybe the legislation the ruler feared, when suspending parliament, would not have been enacted.
6 ‘Perverting the course of justice’ is defined in terms of procedural irregularities – associated with bribery, intimidation and falsehoods – rather than the substantive errors to which such intrusions lead. We can make substantive errors without the intrusion of any of the procedural irregularities that constitute ‘perverting the course of justice’. Whenever a court rules wrongly, it commits an injustice, of course. But ‘perverting the course of justice’ would be said to have occurred only where there has been an attempt to upset our procedures for getting it right. Ruling wrongly on the basis of an accidental error, however, would hardly be said to count as a ‘perversion of the course of justice’.
7 Saying that procedures are valued partly (or even wholly) as the means to establishing the truth (about guilt and innocence, duty and entitlement, etc.) is not to minimize their value but rather to reiterate it. Being the best means for attaining an invaluable social end – truth about guilt and innocence, duty and entitlement – makes ‘due process’ more valuable, not less so. See, more generally, Kearns, Thomas R., ‘On De-moralizing Due Process’, in J. R. Pennock and J. W. Chapman , eds, Nomos XVIII: Due Process (New York: New York University, 1977), pp. 229–254Google Scholar.
8 Rules always have ‘open texture’, affording a certain measure of discretionary power to those applying them to, in effect, ‘make’ rules for themselves; and any making of rules must be done in a rule-bound way, if only in the sense that the ‘rule of recognition’ must recognize the rules thus made as being binding within the system of law there in force (see Hart, H. L. A., The Concept of Law, 2nd edn (Oxford: Clarendon Press, 1994)Google Scholar, chaps 5 and 7).
9 That is the crucial respect in which there is no difference between Augustine’s law-governed kingdom and a well-organized band of rulers, or between Fuller’s well-run corporation and a law-governed polity (see Augustine, , The City of God against the Pagans, ed. R. W. Dyson (Cambridge: Cambridge University Press, 1998)Google Scholar, bk. IV, chap. 4, and Fuller, Lon L., The Morality of Law, revd edn (New Haven, Conn.: Yale University Press, 1969), p. 207Google Scholar).
10 In The Road to Serfdom (Chicago: University of Chicago Press, 1944), p. 54, Friedrich Hayek writes, ‘stripped of all technicalities [the rule of law] means that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge’. Law ‘is basically a matter of providing the citizenry with a sound and stable framework for their interactions with one another’, according to Fuller, Morality of Law, p. 210. ‘Most law, most of the time, works through self-application by agents acting for reasons, following the reasons that the normative force of the law indicates’, in the terms Waldron uses to gloss Hart and Sacks’s analysis of The Legal Process (see Jeremy Waldron, ‘The Concept and Rule of Law’ (paper presented at the New York University School of Law, 2006); available at 〈www.law.nyu.edu/clppt/program2006/readings/Concept%20and%20Rule%20of%20Law%20WALDRON.pdf〉, p. 25, and Henry M. Hart and Albert Sacks, The Legal Process, ed. William N. Eskridge and Philip P. Frickey (New York: Foundations Press, 1994), pp. 120–1).
11 Even a wicked regime or a group of gunmen would find it convenient to rule in this way; see Kramer, Matthew H., In Defense of Legal Positivism (Oxford: Oxford University Press, 1999), p. 67Google Scholar.
12 This is to adopt the efficiency-based argument for the rule of law developed most fully by Raz, Joseph, ‘The Rule of Law and Its Virtue’, Law Quarterly Review, 93 (1977), 195–211Google Scholar. Fuller, Morality of Law, pp. 208, 210, 212, dubs that sort of analysis the ‘expediency view’.
13 As Raz, ‘The Rule of Law and Its Virtue’, p. 199, says: ‘people need to know the law not only for short-term decisions (where to park one’s car, how much alcohol is allowed in duty free, etc.) but also for long-term planning. Knowledge of at least the general outlines and sometimes even of details of tax law and company law are often important for business plans which will bear fruit only years later. Stability is essential if people are to be guided by law in their long-term decisions’.
14 Raz, , ‘The Rule of Law and Its Virtue’, p. 203Google Scholar.
15 Obvious though it is to extend in this way familiar Rule of Law principles to the making of law, it has not been much done in these discussions. Hayek, Friedrich, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), p. 221Google Scholar, following Smith, supposed that no interference in violation of the rule of law would be involved in ‘the passing of a new rule by the legislature so long as it was intended to apply equally to all people for an indefinite period of time’. Raz, ‘The Rule of Law and Its Virtue’, p. 200, remarks similarly on ‘particular laws’ being perfectly consistent with the rule of law, so long as they arise under ‘general’ ones.
16 In Britain, for example, under the Criminal Attempts Act of 1981.
17 The British Crown Prosecution Service thus reminds prosecutors that the offence of ‘perverting the course of justice’ is to be ‘charged contrary to common law, not the Criminal Attempts Act of 1981’. Different charging standards and different penalties attach to successful versus unsuccessful attempts at perverting the course of justice, and to acts causing serious versus trivial harm; see the Crown Prosecution Service’s advice on ‘charging practice’. But all are instances of the same offence. See the Crown Prosecution Service, ‘Public Justice Offences Incorporating Charging Standard’ (2007), available at: 〈cps.gov.uk/legal/section22/chapter_a.html〉 (accessed 14 June 2007).
18 The Crown Prosecution Service, ‘Public Justice Offences Incorporating Charging Standard’, thus advises that although the offence ‘is sometimes referred to as “attempting to pervert the course of justice”, the words “attempting to” should not appear in the charge’.
19 May’s general characterization of ‘contempts of Parliament’ – of which ‘making a deliberately misleading statement to Parliament’ is one – is as ‘any act or omission which obstructs of impedes either House of Parliament in the performance of its function, … or which has a tendency, directly or indirectly, to produce such results’. The last phrase (‘has a tendency … to produce such results’) is designed to include cases like failed attempts. See May, Erskine, The Law, Privileges, Proceedings and Usage of Parliament, ed. C. J. Boulton, 25th edn (London: Butterworth, 1989), p. 115Google Scholar.
20 More specifically, ‘The offence of perverting the course of justice is committed when an accused does an act or series of acts, which has or have a tendency to pervert; and which is or are intended to pervert the course of justice’. Acts performed with the intention of perverting the course of justice, but which do not actually have a tendency to do so (like casting a magic spell on a non-believing judge), would thus not count. See the Crown Prosecution Service, ‘Public Justice Offences Incorporating Charging Standard’, quoting Frederick Archbold, John, Pleading, Evidence and Practice in Criminal Cases (London: Sweet & Maxwell, 1996)Google Scholar, paras 28:1 to 28:28.
21 The Crown Prosecution Service, ‘Public Justice Offences Incorporating Charging Standard’.
22 The ‘dirty hands’ thought suggests that we might want to say that people in positions of political power and authority do something wrong – have dirty hands – even when they could not have done otherwise. See Walzer, Michael, ‘Political Action: The Problem of Dirty Hands’, Philosophy & Public Affairs, 2 (1973), 160–180Google Scholar.
23 Walzer, Michael, Thick and Thin (Notre Dame, Ind.: University of Notre Dame Press, 1994)Google Scholar.
24 Warren, Mark, ‘What Does Corruption Mean in a Democracy?’ American Journal of Political Science, 48 (2004), 328–343CrossRefGoogle Scholar.
25 Hart, , Concept of Law, p. 207Google Scholar.
26 As Raz remarks: ‘Since the rule of law is just one of the virtues law should possess, it is to be expected that it possesses no more than prima facie authority … Conflict between the rule of law and other values is just what is to be expected … [O]ther things being equal, the greater the conformity [to the rule of law] the better – [but] other things are rarely equal. A lesser degree of conformity is often to be preferred precisely because it helps realisation of other goals’ (‘The Rule of Law and Its Virtue’, p. 210).
27 Purely in the spirit of mapping the logical space, I ought to acknowledge the possibility that by the same token occasionally the actions leading to the perversion I have been discussing here (lying, bribery and intimidation) might conceivably be autonomy enhancing, not just for those engaging in those practices but also for those subject to them. While logically possible, that would probably be very rare in practice, however.
