Legitimacy, Courts and State-Induced Guilty Pleas in Britain
Alexander Hamilton, writing in the Federalist (No. 78), described the judiciary in a democracy as the weakest and least dangerous department of government. More than 200 years later I would argue that his statement accurately describes the role of the judiciary in the governance of our country. (Lord Steyn, 1997) At a general level, the highest courts in both England and Scotland have enjoyed an authoritative status over many centuries in the sense that they have secured a substantial measure of public confidence. They have not only attained de facto authority but, by providing considered and reflective judgments, have secured 'normative-justificatory' authority. They have, in short, offered persuasive reasons why people should respect their role as well as their individual rulings. In this process, courts have garnered public respect, deference and trust even though particular judgments have been controversial. In political science terms, this equates to having secured 'diffuse support', that is, loyalty to an institution which is not contingent upon satisfaction with the immediate outputs.2 Our concern in this book goes beyond the issue of public confidence and, instead, is with the question of the legitimacy of British courts by reference to their law-making or policy functions in the arena of criminal justice as seen through the lens of State-induced guilty pleas.