An obscure but interesting question, perched painfully on the border between law and morality, has come up recently: what may we say about judges?
This question seems to have bothered the Department of Justice much in recent months.
During the controversy over the jailing of the seven cops who beat up a trussed protester, the department pleaded for restraint and deployed the classical quote of Lord Atkins: “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and the respectful, even though outspoken, comments of ordinary men.”
But this is hardly a ringing endorsement of freedom to comment, particularly if you start your reading of His Lordship’s oration a bit earlier with: “The path of criticism is a public way; the wrong-headed are permitted to err therein, provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice.”
In other words, criticism is erroneous but OK as long as it keeps off some topics. A similar message can be found in the less colourful prose of Rimsky Yuen, in his recent apologia – printed in all the sympathetic media verbatim – “the public has a right to discuss judicial decisions, but no discussion should seek to undermine the integrity or impartiality of the Judiciary.“
On the face of it this is nonsense. A discussion is not an actor which can seek to do anything. What he means presumably, is that discussion, like Atkins’s criticism, should keep off the grass. No discussion can “undermine the integrity or impartiality of the judiciary”. Some discussants, on the other hand, might question whether these qualities were reflected in particular decisions. This, Mr Yuen fears, might undermine confidence in our judiciary. This is rather like blaming the failure of a play on bad reviews.
It is, though, a popular line among judges. A pioneer was the 18th century judge Lord Kenyon, who opined in 1793, “The character of the Judges is public property, and if they have done anything amiss, they ought to be censured. But if not, their characters ought to be respected; otherwise the most mischievous consequences will arise to the public.”
It appears that in the view, at least, of many judges, belief in their infallibility is not required, but belief in their essential righteousness is. And this is not a matter of fact, it is a moral obligation, even though a moral obligation to believe something generally only comes up in religious contexts.
Indeed, judges do not themselves believe things as a matter of obligation, at least according to an American judge, Jed Rakoff, apparently not much read in our Court of Appeal, who said: “An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous. If its deployment does not rest on facts – cold, hard, solid facts, established either by admissions or by trials – it serves no lawful or moral purpose and is simply an engine of oppression.”
I have nothing against judges. I have met several socially and one or two became good friends. I was once introduced to Lord Goddard, who seemed harmless enough in the flesh, though Lord Denning later commented that people who said Goddard was the worst Chief Justice since Jeffries were being unfair to Jeffries. An American judge once observed that in the vast majority of cases the law was quite clear and the judge had no choices to make.
On the other hand it is also clear that the law on some points leaves a great deal up to the judge, particularly in the matter of sentencing, where there is usually a maximum, occasionally a minimum, and not much else. Judges like to pretend that the filling in of this gap leaves them few choices, but there may be an element of self-deception here. If your job consists of passing sentences which will wreck people’s lives you will feel much more comfortable if you can convince yourself that the process is automatic.
Now, consider this passage from the currently (and rightly) fashionable book Thinking, fast and slow, by Daniel Kahneman:
“A disturbing demonstration of depletion effects in judgment was recently reported in the Proceedings of the National Academy of Sciences. The unwitting participants in the study were eight parole judges in Israel. They spend entire days reviewing applications for parole. The cases are presented in random order, and the judges spend little time on each one, an average of six minutes. The default decision is denial of parole; only 35% of requests are approved. The exact time of each decision is recorded, and the times of the judges’ three breaks – morning, lunch and afternoon – are recorded as well. The authors of the study plotted the proportion of approved requests against the time since the last food break. The proportion spikes after each meal, when about 65% of requests are granted. During the two hours or so until the judges’ next feeding, the approval rate drops steadily to about zero just before the next meal. As you might expect this was an unwelcome result and the authors carefully checked many alternative explanations. The best possible account of the data provides bad news: tired and hungry judges tend to fall back on the easier default position of denying requests…”
We seem to have two different worlds here. In one of them decisions are made on the basis of proven facts. In the other your chances of freedom depend on when the judge last had a biscuit. Clearly judges have a long way to go to achieve what psychologists would now regard as a realistic view of their own mental processes.
This may to some extent be a professional requirement. The lay reader of some judicial decisions has to admire the way in which the law is persuaded to favour what is obviously the only fair decision.
That this is to some extent a two-part process can be gleaned from a famous piece of advice offered by Lord Mansfield to a non-lawyer who had been appointed to a judgeship in a distant part of the Empire: “Give your judgments,” said Lord Mansfield, “but give no reasons. As you are a man of integrity, sound sense, and information, it is more than an even chance that your judgments will be right; but as you are ignorant of the law, it is ten to one that your reasons will be wrong.”
This is a feature of Common Law systems: the law is whatever judges say it is. This explains H.L. Mencken’s jibe that “A judge is a law student who grades his own papers”.
Well we have wandered a bit from the point here. Clearly judges are in the category of people to whom our default attitude, as law-abiding citizens, is respect, even admiration. We may be beholding a retired lawyer in “the monstrous wig which makes the English judges look like rats peeping through bunches of oakum,” as Thomas Jefferson put it, but the doing of justice, however imperfectly, is an important social service.
I am not sure, though, that this implies the restrictions on comment which judges and other lawyers appear to expect.
It appears that if, faced with a judgement of the Court of Appeal which included the observation that “In recent years, an unhealthy wind has been blowing in Hong Kong,” we are free to comment that some people might feel the unhealthy wind more as a welcome breeze. We are also free to refer the Vice President of the Court of Appeal to the observations of Mr Rakoff, above. At some risk we may wonder whether it is conducive to respect for the rule of law to have a Vice President who thinks he is a weather cock.
But we must not under any circumstances draw attention to the curious similarities between the Vice President’s meteorological observations and the opinions expressed by senior Chinese officials, leader writers in the poodle press, and other unlikely sources of judicial inspiration. That would never do. Perish the thought.