The Riddle of Sub-Judice and the Modern Law of Contempt

Authority, and specifically the authority of courts, has become normatively suspect in contemporary political and legal theory, but its historical transformations and multiple interpretations have not received adequate scholarly attention. This essay explores the changing character of court authority by examining the common law offense of contempt of court, focusing on the sub-judice rule and its history in English law. Contrary to existing literature, the sub-judice doctrine does not preserve a traditional-monarchical conception of authority, nor can it be fully understood under the currently prevailing paradigm of obstruction of justice. The essay suggests that sub-judice reflects two distinct senses of authority, each premised on a different understanding of the role of courts in democratic societies and the relationship between courts, mass media, and public speech. The first account views the court as an insular sphere of an essentially bureaucratic authority. Under this account, sub-judice strikes a balance between freedom of speech and a fair trial, protecting the integrity of the legal process from undue influence by the public press. The second account views the court as a distinct forum of public speech. Here sub-judice guarantees the necessary conditions that allow the court to speak publically vis-à-vis the media’s production of public opinion for mass consumption. The essay concludes by drawing some broader implications from this history for studies in historical jurisprudence.