Waiver of the Rule Against Bias

Abstract

Two rules stand as the twin pillars of natural justice, the “rule against bias” (nemo debet esse judex in propria sua causa) and the “hearing rule” (audi alteram partem). The primary concern of this article is the rule against bias and in particular the often recited, but rarely questioned, rule that the parties to a hearing can waive any bias. The article begins with a general examination of the doctrine of waiver as it has operated in the English common law, before discussing how the doctrine was first applied to the rule against bias. The author concludes that the parties should not be allowed to waive bias because the underlying rationale of the rule against bias does not permit waiver.

Keywords: Common Law, Rule Against Bias, Natural Justice, Legal Systems, Public Law

JEL Classification: K00, K40, K41