The debate over the proper role of judges in the Anglo-American legal system is as old as the system itself. Long ago, Thomas More summed it up in a way that could have been clipped from yesterday's news, making clear there was no doubt in his mind about what Sir John Baker has called simply the “evil of judicial arbitrariness.” More was unambiguous: “If you take away laws and leave everything free to the judges,” he argued, “…they will rule as their own nature leads and order whatever pleases them, in which case the people will in no wise be more free but worse off and in a condition of slavery, since instead of settled and certain laws they will have to submit to uncertain whims changing from day to day.” This is not a matter of regrettable personal excess, but of inevitable institutional inclination; without restraint, More concluded, “this is bound to happen even under the best judges.”

Two and a half centuries later, Sir William Blackstone would make largely the same argument in his Commentaries on the Laws of England, arguing that “the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge.”