Pragmatism and Theory in English Law - College of Social Sciences ...

The Weaknesses of the Pragmatic Tradition 111
judges, are in truth policy decisions, as many academics
argue and as Lord Hailsham himself seems to admit, 28 so
that a judge with a political background may even be a
better judge than one who has a purely professional background?
And if that is the case, can we really be sure that
apparent aloofness and abstention from controversial issues
are the best postures for judges?
Then again, there must be doubts about the premisses
of the pure pragmatist who says "It works, so leave it
alone." In a sense it does work. The Lord Chancellor is
usually, in modern times almost always, a figure of high
repute both as a politician and a lawyer, and though there
may be the occasional question about his immense powers
of patronage in terms of judicial appointments and promotions,
the quality of the English judiciary generally
continues to be very high. But then in another sense all
this can only be said to be working well if we limit our
objectives in certain traditional ways. Other people, nonlawyers,
especially those on the radical left, may not think
it works well at all. I myself have little affinity with those
on the radical left, but I can certainly see an argument
being made that our judges are very unrepresentative of
the community, and ought to be made more representative.
If it is said that this is inevitable given that judges
are drawn solely from the Bar, the next question must be,
is it right that our judges should continue to be drawn
exclusively in this way? And if it is said that legal trials as
presently conducted could not be properly handled by those
who had no experience at the Bar, then the question must
be, do we want our legal trials to be so conducted that
' Seejohn Bell, Policy Arguments in Judicial Decisions (1983), p. 5.