Harvard law professor Duncan Kennedy is a formidable legal academic.
He slaughters legal sacred cows in such numbers that if legal professional organisations issued fatwas, I suspect a lot would be aimed at him.
In the 1996 Harvard Law Bulletin he admitted to being engaged in “a kind of intellectual guerilla warfare”.
In one article in 1992 he starts off by saying that law schools are places where there is “endless attention to trees at the expense of forests”, and then ramps up the criticism.
His book A Critique of Adjudication (1997) explores a forest that has not escaped his attention: the judicial process.
Once exposed to that book, a judge or lawyer might well say (to use Kennedy’s words at page 312):
“Once I believed that the materials and the procedure produced the outcome, but now I experience the procedure as something I do to the materials to produce the outcome I want. Sometimes it works and
sometimes it doesn’t, meaning that sometimes I get the outcome I want and sometimes I don’t.”
Kennedy (seen here) is one of the leading lights of the critical legal studies movement (CLS), which got rolling in the 1970s.
It explores what the law and the judges are really all about and it builds upon the traditions of the “legal realism” movement.
However, as Peter Ben Friedman, another US law professor, has pointed out:
“To suggest that [judges] might decide cases before articulating compelling reasons to support those decisions threatens the belief of many that the role of the judge is simply to interpret, not to make, law.”
One Canadian researcher who conducted interviews with several dozen judges (on how they decide cases) has written:
“One of the more intriguing aspects of the interviews that I conducted with several dozen judges was their invariably apologetic beginning (‘I’m sure I’m just telling you what everyone else did’), which was then followed by accounts of unique and idiosyncratic models and processes.”
(Canada’s Courts, Peter McCormick, James Lorimer and Company, 1994, page 49.)
Traditionally the response of the judiciary to all this was to say nothing.
In 2008 former English Lord Chief Justice Tom Bingham said that until recently the Kilmuir Rules ordained that …
“the judges should really not open their mouths in public at all, except to give judgment or to deliver lectures so learned and obscure as to be sure of attracting no public attention whatever… The rationale for the rules was not entirely flattering … it was that the judges’ reputation for wisdom would be shattered if they were to open their mouths with any greater frequency.”
Pic: Kilmuir when he was David Maxwell-Fife prosecuting at Nuremberg
You can watch the video HERE.
When the pressure on judges to answer questions got too great, they came up with other ploys.
One was that they would keep their mouths shut and Attorneys General would “defend” them.
That ploy has been abandoned now, although:
“Attorneys General should return to a traditional role of defending judges from ‘unfair’ political and media criticism, according to two of Queensland’s leading legal figures.”
(“A-G should defend judges”, The Courier-Mail, September 7, 2006.)
Another ploy is to claim that they would like to explain, and that they have a good explanation, but that legal protocol demands that the explanation not be tendered.
Want to, but can’t.
In 2005 Justinian’s editor wrote:
“Over the past week it’s been raining off-the-bench remarks by judges. Invariably these pronouncements include the reminder that judges are at a huge disadvantage because they cannot defend themselves in public.”
Five years later nothing has changed.
Last Friday (April 16) Victorian Chief Justice Marilyn Warren (pic) gave a speech in which she said:
“Judges are not politicians or business leaders. They do not answer back.”
Answering back was, of course, precisely what she was doing at the time.
Her speech was entitled “Judges Don’t Spin”.
She was doing that too.
These days it falls to the CJs to defend the judiciary and the “system” and sentencing and so on.
Marilyn’s unsophisicated denials put her judicial propagandising skills on a par with those of judicial spinners such as Queensland Chief Justice de Jersey (pic), who in 2002 also said he wasn’t doing what he obviously was.
He said that lawyers were …
“the custodians of civilisation … This is not empty grandiloquence.”
Contrary propositions should be put into different speeches, as spinmaster NSW CJ Spigelman does. Take for example his proposition that:
“The most important aspects of the work of the courts are qualitative and cannot be measured.”
In a speech in February this year he said that the quality of judicial work would improve (which implies that it can be measured) if judges could gallivant around more (see pp. 11-12).
In 2007 he spun the judicial quality measurement issue another way.
He said that judicial quality could be measured, but only by other judges.
In that speech he was getting alarmed at a proposal that “community representatives” be given the power to measure the quality of judicial work.
He effectively said lay people couldn’t do this because it would involve them in “detailed investigation of facts, a task in which judges have special skills” (and by implication lay people haven’t).
That bit of Spiggsie (pic) spin was particularly contestable. See, for instance, Harvard law professor Frederick Schauer in Is There a Psychology of Judging?:
“Much of the current research on the psychology of judging has usefully cast doubt on the view that judges by virtue of their intelligence or legal training or judicial position could significantly outperform juries with respect to the same fact-focused inquiries.”
Spiggsie’s spin is often difficult to detect, as good spin should be.
Repeating criticism and adding a denial lacks sophistication. Here are four examples from Marilyn’s speech:
* “Sentencing is not about ‘I think X years is the right amount’. It is about applying principles of law.”
* “Judges are different from politicians and business leaders. We are not about ‘spin’ but about delivering justice.”
* “Sentencing cannot be irrational, uncertain or unpredictable. It is subject to careful legal principles.”
* “It needs to be remembered that the courts do not make things up as they go along.”
She needs to go gallivanting off to Spiggsie for tuition.
Interestingly, the NSW Judicial Commission has produced a video called The Role of the Judge.
It covers such things as contact with the media and the process of judging.
The DVD is provided to all new judicial officers in NSW on appointment.
As far as I can see, the Judicial Commission refuses to supply it to the general public.
If it can make its Benchbooks available (which to its immense credit it does) then why not let the public know the role of the judge?