tim's experiment

“Put not your trust in princes,” sang the psalmist. This may come as a surprise. Until I looked it up I thought it came from Macchiavelli.

Well we have no princes to tempt us here. And I imagine few people will be foolish enough to put their trust in officials, still less in the products of our much manipulated electoral processes.

We are, however, repeatedly urged to put our trust in judges. There is an annual festival to this effect, known as the Opening of the Legal Year, in which the judges parade in quaint costumes and are regaled by speeches in their praise from sundry big-wigs – some of whom do actually wear big wigs for the occasion.

The theme of this year’s carnival, sung with different variations by the Secretary for Justice, the Chief Justice, and some lesser vocalists, was that we should not criticise judges. I am reminded of an old saying about Hollywood actors: if you’re not praising them they’re not listening.

This is not quite fair to them, of course. The official line is that polite criticism is all right, but vulgarity and personal abuse are not. It appears though, from the frequency with which this song is sung, that almost any criticism of a judge can be considered either vulgar or personal or both.

I do not defend those people who characterise judges as domestic animals of various hues, depending on the preferred ribbon colour of the accuser. “Personal” is perhaps another matter. Spectators who discover matters in the background of a judge which might have led a less robust individual to withdraw from the case are surely entitled to argue that less robustness would have been in order.

Those of us who discern in the Vice President of the Court of Appeal a tendency to ride personal hobby horses in his judgments are presumably free to point out that this eccentricity has also been noted and condemned by the Court of Final Appeal.

It is argued, on the other hand, that the Rule of Law requires us to believe, or pretend to believe, in judicial infallibility. Or to put it another way, that respect for the law and admiration for judges are the same thing. It is like some versions of Christianity: belief is an obligation, salvation the reward.

This is not very convincing. I have been reading, as I do from time to time, “The Literature of the Law”. This is a collection of pieces, mostly extracts from judges’ announced verdicts, collected and sympathetically edited by a senior barrister, Brian Harris.

Mr Harris seeks to show, with to my taste considerable success, that the best judicial writing is a model of functional prose, especially when suitably pruned.

The interesting thing about this selection of prize judgments is how many of them were not actually the majority opinion of judges at the time.

Indeed Mr Harris, no card-carrying liberal himself, notes as “interesting” the fact that so many of the great historic judgements in defence of human rights were either delivered as a dissenting minority opinion or were subsequently over-ruled by a higher court.

In at least one case the minority opinion was rescued by posterity, and then over-ruled again. Lord Atkin, who opposed the government regulation which allowed suspect aliens to be detained indefinitely during World War II, was out-voted by his fellow Lords at the time but was generally thought thereafter to have had the right of it. Then the War on Terror came along, and the Lords capitulated again to the government’s desire to jail foreigners without trial.

Lawyers in the Common Law tradition are fond of claiming descent from Chief Justice Edward Coke, who rather daringly told King James I (and VI of Scotland – the man of Bible fame) that the King was subject to “God and the Law.”

What happened next is recorded less often, but according to a contemporary went like this: “His Majesty fell into high indignation as the like was never known in him, looking and speaking fiercely with bended fist, offering to strike him etc. which the Lord Coke perceiving fell flat on all fours, humbly beseeching His Majesty to take compassion on him and to pardon him if he thought zeal had gone beyond his duty and allegiance.”

And this, I fear, is the fact of life about judges. On a good day, they speak inconvenient truths to power. On other days they are on all fours, humbly beseeching the approval of the powers that be.

Students of Kahneman (“Thinking fast and slow”) will know that logical thought is a rare and difficult accomplishment, often merely a disguise for less elaborate mental processes of which the thinker is unaware. Some of his most disturbing examples are from studies of judges.

Unfortunately putting a rich elderly person on a dais and subjecting him or her to a daily diet of lawyerly grovelling is unlikely to produce a humble awareness of the limitations of what is going on inside the judicial skull, or indeed on the limits on what the owner of that skull knows about those goings on.

Well, as Fielding put it, we are all no better than God made us and many of us are a good deal worse. Judges are only human. We can hope for heroism but we should not expect it.

What we can expect, I humbly suggest, is greater speed. It is disturbing to read of cases heard by a judge alone which have been argued and decided, but still await a written judgement six months after the hearing.

Disputes over elections are not meaningfully settled if it takes half a term of the office in dispute for a decision to emerge from the legal machinery.

No doubt judges are busy. But there is the matter of priorities and relative importance. Depriving people of their liberty is a major infringement on their rights, particularly if they turn out to be innocent. It is a reproach to the system that we have people winning appeals when they have already served most or all of the erroneous sentence.