This chapter examines ways in which longstanding features of the legal system serve to counteract the forces outlined in Chapters 2 and 3 and thereby minimize the influence of improper factors on judicial behavior. It considers the adversarial process, the doctrine of precedent (or stare decisis), and the practice of justifying decisions via written opinions, and examines the ways in which the nature of each – and thus its effectiveness in channeling judges – has decreased. It further explores changes in the practice of law and in the culture more generally, including automation, that have altered the manner and depth in which lawyers and judges engage with the law.

This chapter introduces and unpacks the standard model of judging, which imagines a system in which independent judges apply pre-existing legal rules to determine the winner following an adversarial proceeding. It thus explores the concept of judicial independence and the ideal of the rule of law, revealing both to be more complex and contingent than first meets the eye. Judicial independence exists in relation to the actors and forces we want judges to be independent from and is necessarily tied to judicial accountability. The rule of law is necessarily an incompletely realizable ideal because lawmakers cannot perfectly anticipate the future and because the law is often motivated by conflicting values. Indeterminacy is the result. The idealized adversarial process is likewise only imperfectly realized, often by design.

My argument is that it is impossible for a judge to both provide unrepresented and poorly qualified litigants with meaningful legal assistance while at the same time avoiding impartiality. The English system of civil justice offers poor access to litigants of limited means. This has been the case for a long time, but the problem has become even more serious since the abolition of legal aid in civil cases and there it is now urgent to address it. The strategy that seems to appeal to the legislator favours procedures that can be conducted without the involvement of professional advocates, of inquisitorial proceedings. This strategy is misconceived. While there is much to be said for simplifying the litigation system through use of technology, online resources and other labour-saving measures, there is no substitute for adversarial process.