Common Law Cognition and Judicial Appointment

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.