Common Law Cognition and Judicial Appointment


  • J. E. Penner



This article explores jurisprudential issues relating to the appointment of judges in common law jurisdictions. After examining three competing versions of the legitimacy and limits of judicial law- making — namely, the positivist, the theoretical/Dworkinian, and what the author terms the "common law cognitive" — the author proposes that judges of constitutional courts should be popularly elected from among the citizenry at large and that judges of non-constitutional courts should be drawn from the legal profession though a process of peer assessment.