NATURAL JUSTICE IN ENGLISH ADMINISTRATIVE LAW, THE RULE AGAINST BIAS
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Course
Public Law (LL5001)
Institution
London Metropolitan University (LMU)
A critical examination of the main principles of Natural justice and the Rule against bias.
Special emphasis given to situations where the law excludes the application of the rule against bias and the motives behind those exceptions.
Does the rule against bias defeat its own purpose due to its...
NATURAL JUSTICE IN ENGLISH
ADMINISTRATIVE LAW:
Has its essential purpose faded into oblivion?
1. An Ethical-Philosophical background: Is justice natural?
During centuries, many different civilizations have tried to look for an answer to the question
of what justice is. Many have done it through religious or philosophical principles, many of
them turned into social norms or cultural rules which gave rise to the first legislations, and
hence became the ancestors of our modern laws. In this section of the essay, we will be
looking at one of the most common philosophical approaches to Natural Justice: The
Aristotelean principles of Virtue Ethics and moral naturalism.
Moral naturalism refers to morality, justice and law defending that the knowledge human
beings gain through the understanding of the natural world conforms moral facts. Those moral
facts allow us to mould our ‘common sense’, on which we base our capacity to give correct
judgements and through which we filter our moral values. Therefore, moral naturalism
defends that those moral facts are but natural facts, making morality a realistic concept and
not a mystical or transcendent one, as it is based on the human race’s understanding of its
surroundings through the history of its existence on the world; human interactions which each
other and other living species rather than on the knowledge placed upon human race by divine
or superior entities 1. In regards to Natural Justice, it could be defended that justice is a natural
virtue inherent to human race because human reason can naturally comprehend the
differences between right and wrong, good and evil.
Aristotle’s moral philosophy has played a key role in the development of important
contemporary uses of legal ethics. He believed that mankind’s characteristic function was the
rational activity, the ‘human excellences’ 2 or virtues 3, as the use of reason is what makes us
distinctively human 4. Contrary to philosophers like Kant and Bentham, Aristotle did not believe
in a decision procedure for ethics 5. Both Kant’s categorical imperative 6 and Bentham’s
utilitarian calculus 7 intend to provide a fixed method for acting in agreement with the
1
J.L. Mackie, Ethics: Investing Right and Wrong (1st edn. Penguin 1977) ch.1 Sec. 9
2
These human excellences can be divided on intellectual or moral. Intellectual excellences are formed
by ‘theoretical wisdom’ (understanding of subjects like mathematics, chemistry, and communication
skills) and ‘practical wisdom’ (good judgement or common sense)
3
In counterpart to intellectual excellences or virtues, moral excellences are moral virtues such as
courage or temperance. Each moral virtue is a mean with respect to a ‘morally neutral’ emotion. For
example: courage, the moral virtue, exists to counter fear, the morally neutral emotion, in prevention of
cowardice, the moral vice originated by overreaction to danger.
4
J. Annas, Virtue Ethics in the Oxford Handbook of Ethical Theory (Oxford University Press, 2005), 515.
5
J. Rawls, Outline of a Decision Procedure for Ethics, Philosophical Review (Harvard University Press
1999), 1-19.
6
Act so that the maxim of your actions could be willed as universal law of nature.
7
Act so as to maximize utility.
,requirements of morality. Aristotle saw in most members of humanity a good and virtuous
person who was good at deliberation, the average person or ‘the reasonable person’ we would
nowadays use in an objective test. This is, to reason what is best to do in each situation as
what a person must do or what is correct varies upon the situation 8. Furthermore, the virtue of
practical reasoning itself entailed justice, benevolence, and prudence. If so, justice alone could
be said to be natural.
However, it could be argued that justice can also be seen as merely artificial as conceptual
theories of fairness are constructions of the human reason. On the other hand, this can
amount to Aristotle’s theoretical wisdom 9, because the legal theories we develop are based on
the knowledge we gain through the observation of the world’s events 10.
Another point is the relation of justice and fairness and of justice and lawfulness. If justice
amounted to lawfulness, then following the same principle, the virtue of justice would be the
disposition to act in agreement to the respective theory of fairness (e.g. To be considered fair,
legal authorities must act in accord to the rule of law). If justice amounts to lawfulness, the
virtue of justice is the disposition to act in accord to particular laws, social or cultural norms. In
either case, justice alone stands as an artificial virtue. However, the disposition to act is a
virtue of justice, and consequently a natural virtue.
It is true that the average person has the natural tendency to act in accord with social norms
and laws. The fact that some humans do not have that tendency does not contradict this
premise as there are many inherently-human characteristics that not all persons share, like the
existence of people who cannot distinguish bad from wrong due to mental impairments.
In practise, it is clear that all legal authorities have the natural capacity to ascertain what is just
and fair in each situation and, like Aristotle believed, a judge must reason what is best in each
situation (although acting upon pre-established norms like caselaw or statues). If analysed
carefully, it is undeniable that it would be impractical and unjust for a reasonable (‘virtuous’)
judge to apply the same approach to every single case and situation…
And this is terribly often mistaken as impartiality.
8
According to his beliefs, most members of society possess ‘natural goodness’: intrinsic human features
such as social skills, use of language and practical reasoning
9
One of the intelligence virtues associated with human reasoning.
10
See generally R. Kraut, Aristotle’s Ethics (The Stanford Encyclopaedia of Philosophy, 2005 summer
edition)
, 2. Core Principles of Natural Justice:
The idea of Natural Justice has been mainly conceived and developed in common law. The
academic rationale as we know it today stems from premises given by judges such as Sir
Edward Coke (Dr. Bonham’s 11 and Bagg’s 12 cases), Lord Reid (Ridge v Baldwin 13), or V.C.
Megarry (McInnes v Onslow 14). However, its purest conceptual purpose was that of expressing,
even connecting, the common law and moral principles: Striving for the fairest available
outcome for the person who is being judged and who is in the weakest legal position. Byles J
gave an example of this ideal in Cooper v Wandsworth 15, where he proposed that, to avoid an
unfair decision for the plaintiff, the justice of common law would have the duty to supply the
omission of legislature 16. In a later case, Wiseman v Borneman 17, Lord Guest explained the
relevance of natural justice on fulfilling said duty: ‘’ The courts will imply into the statutory
provision a rule that the principles of natural justice should be applied’’.
Hence, the two common law pillars of Natural Justice are the individual’s right to adequate
notice and hearing, or audi alteram partem, and the individual’s right to receive a judgment
completely free from bias, or nemo judex in causa sua potest, both principles against decisions
which breach basic values of fairness.
Audi alteram partem: The Hearing Rule.
The rule for a right to a fair hearing and the rule against bias are usually treated and defined
separately. However, we may assume the implication of the second into the first as, in order
for a hearing to be fair, no bias or prejudice can be present on the decision-makers. The
approximate translation for the Latin phrase ‘’Audi alteram partem’’ is ‘’hear the other side’’.
After Dr. Bentley’s case 18, the hearing rule was reinforced in 1899 in Re Gaskin19, where Lord
Keyton forged the Latin premise. Nevertheless, can this right prove impractical for the
purposes of fairness sometimes?
In Ridge v Baldwin20, the defendant had been charged with conspiracy and was dismissed from
his position as Chief Constable. The initial opinion was that the dismissal had been fair, as
there was enough evidence of him being guilty of those allegations. However, his appeal was
successful: Even though the dismissal had been apparently fair, it had been an invalid action
because no hearing had been afforded. Due to this judgement, legal justice has been said to be
more concerned with procedural justice and maintaining procedural standards and with a
technical, objective application of justice rather than a subjective induction of what each party
truly deserves in the outcome. However, and this is when impartiality, absence of bias, comes
into play within audi alteram, it would be simply fallacious not to afford a fair hearing when it
is due simply because of the mere appearance of a defendant ‘getting his fair desserts’, on the
expenses of him not having a chance to expose his own case. Lord Hodson said that where the
power to be exercised involves a charge made against the person who is dismissed ‘’ the
11
Thomas Bonham v College of Physicians (1610) 8 Co Rep 113b [77 ER 646].
12
Bagg's Case (1615) 11 Co Rep 95b [77 ER 1271 at 1275].
13
Ridge v Baldwin [1964] AC 40
14
McInnes v Onslow-Fane [1978] 1 WLR 1520
15
Cooper v Wandsworth (1863) 14 CB (NS) 180
16
Per Byles J in Cooper v Wandsworth (1863) 14 CB (NS) 180 at 193
17
Wiseman v Borneman [1971] AC 297
18
R v. Derek William Bentley (Deceased) [1998] EWCA Crim 2516
19
Re Gaskin (1990)120 B.R. 13 (1990)
20
Ridge v Baldwin [1964] AC 40
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